Torts - Download as DOC by Ghazalehjoon

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INTENTIONAL TORTS  Assault: placing another in apprehension of immanent harmful or offensive contact( attempted battery) 1. intent to frighten/creation of fear 2. must be capable of committing of the intended act 3. words alone not sufficient/ small overt act required 4. plaintiff must be aware of immanent danger  Battery: intentional infliction of harmful or offensive contact to the personal of another 1. contact by indirect means ( instrumentality) throwing something, spitting 2. putting the forces in motion will be sufficient ( chasing and P falls causing injury) 3. Exceeding a privilege (medical malpractice, any unwanted advances).  Intentional infliction: extreme and outrageous conduct that exceeds all bounds of dependency in a civilized society and causes severe mental distress 1. physical injury not required 2. the P must prove damages e.g extreme phobia, humiliation, 3. must be intended result/ substantial certainty 4. or D recklessly disregarded the possibility that distress would result 5. actual and proximate causation  Trespass to chattel: when D intentionally interfere with the posessory rights of another over their personal property. 1. P must prove damages by the loss of use or actual damage caused 2. not as severe as conversion 3. mistake as to legality is not a defense to TC or conversion 4. D is liable for the damage or diminished value of the chattel  Trespass to land: intentional un consented entry onto the real property of another. Remaining on the land exceeding privilege will be sufficient, causing a third person or object enter the land, failing to remove a thing from the land which D is under duty to remove. 1. intent necessary; reckless or negligent entry will be sufficient if harm is caused 2. intent no enter is sufficient without damage 3. air space is covered if below prescribed feds minimum and interferes with P‘s enjoy of his land 4. particles and gases: if D knowingly causes particles /gases to enter most courts consider trespass to lAND  False imprisonment : intentional unlawful confinement of another against their will


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL 1. liable for FI intends to confine in certain fixed boundaries and the act directly or indirectly results in such confinement of the other 2. the other was conscious of confinement or harm by it Exception: minor /mental incompetent do not need to be aware .. Defenses:  shopkeeper privilege: no action of FI will rise against a shopkeeper who detains the suspected shoplifter 1. there are reasonable ground the theft occurred 2. the detention is done in a reasonable manner 3. reasonable period of time to conduct an investigation Conversion: exercise of dominion and control of the chattel of another so substantially that it is fair that the D pay the full market value; forced sale 1. distinguishing from TC:  duration of D‘s dominion over the property  D‘s good or bad faith  The harm done to the property  Inconvenience caused For conversion D is liable for full value of the chattel at the time of conversion NIED (non-intentional Tort)/ NIED bystander It is established when D‘s conduct was a substantial factor in causing P‘s distress. Bystander must prove: he /she was foreseeable, he/she was closely related. ( living together, family, fiancé/ determinate upon relations) he/she had contemporaneous of the event happening. He/she must be in the proximately of the event. The victim was not in any way a contributing factor in the negligent act of D. he/ she actually suffered distress/damages. 

Defenses: NECESSITY: Defendant may be reasonably privileged to interfere with property rights of another if acting due to an immanent threat and to protect his person or property. 1. public necessity: intentional interference with the property of another for public benefit/emergency  Person will not pay damages for public necessity 2. private necessity: intentional interference with the property of another for one‘s own benefit /emergency  person will pay for any damage caused to property CONSENT Express consent: If P expressly consents to an intential interference with his person or property ,D will not be liable for that interference


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL Implied consent: existence of consent may be also be implied from P‘s conduct, custom, or from the circumstances ( e.g. holding arm out to get vaccinated) Lack of capacity: consent will be invalidated if P is incapable of giving consent( intoxicated, minor, unconscious, mental incompetent) Exceeding scope: even if P does consent to an invasion of her interest , D will not be privileged if he goes substantially beyond the scope of that consent. ( e.g. doc was consented on R ear but decides L ear is worst and operates) NEGLIGENCE Defined: conduct which falls below the relevant standard of care established by law for the protection of others against unreasonable risks of harm. Prima facie case:  duty: is the standard of care to act as a reasonable prudent person under same and similar circumstances 1. landlords duty: a landlord of a premises owes a duty to inspect and provide safe conditions on the premises before giving position to a tenant ( reasonable inspection/obligation) NO EXTRA ORDINARY MEASURES NECESSARY/ ONLY LIABLE WHAT REASONABLE INSPECTION WOULD FIND.BURDEN OF REDUCING/AVOIDING VERSUS THE LIKELY HOOD OF INJURY. 2. premises liability: the duty an owner/ manager of property owes to the guest /tenants / or other members of the public who enter their premises to insure reasonable care and maintenance of the property has been provided and to warn of possible dangers that they had knowledge of or should have known.  INVITEES VS. LICENSEES invitees: ( greater standard of care owed/ in furtherance of business purposes) the owner of premises owes a reasonable duty of inspection., To insure its safety, to find any hidden or obvious dangers and to protect invitee from any harm. Licensses ( reasonable duty to warn/ take premises as they come/ social guest)LC have the owner‘s consent but normally no business purpose. The owner has the duty to warn of any known dangers. Public officials/ trash collectors fall under invitees. Business proprietors liability for NEG/ intentional criminal coduct of others: a business proprietor owes a duty to take affirmative actions to control the wrongful act of the third person which threatens the invitees to the premises. Where the business owner has reasonable cause to anticipate such


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COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL acts and probability if injury resulting , he must take reasonable care/ precautionary methods. PROFESSIONAL NEGLIGENEC/MALPRACTICE: DOCTORS/ATTORNEYS/REAL STATES/  A professional is negligent if he/she fails to use the skill and care that similar professionals would use in similar circumstances. P must prove a cause of action for Pro Negligence.( duty, breach. Causation, actual damages caused by conduct).  Courts will consider locality rule or national custom standard.  Psycho therapist duty to warn: Terasoff Rule (CACI 503) Psycho theraphist has a duty to warn if a patient has communicated serious threats of physical violence to a specific victim. Failure to use reasonable efforts to warn will be a breach of duty.  

breach: occurs when a conduct of another falls below the established standard of care/duty owed to another. Causation: actual & proximate 1. Actual : but for these conduct P‘s injury would have not occulted substantial factor : D‘s conduct is a substantial factor of P‘s injury/harm caused( several intervening forces caused the injury but either one could be the substantial cause) Proximate ( forseeability / direct and indirect causes) Direct: straight responsibility Indirect: multiple actions may be contributing EGGSHELL PLAINTIFF 3928 The tortfeasor takes the person he injures as he finds them. If by reason of some pre existing condition, his victim is more subsatable to injury, therefore a tortfeasor is not excused from liability. NEGLIGENCE PER SE ( VIOLATION IN ITSELF) 1. violation of the an ordinance /statue by the D 2. the injury suffered by P was exactly the type of injury that statute designated to prevent


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL 3. the victim who suffered the injury was in the class of persons to be protected by the statute 4. violation of statute only establishes duty and breach of duty. 5. P must prove causation and damages.

RES IPSA LOQUTUR An inference of negligence raised when: 1. injury would have not occurred absent negligence 2. the D was in exclusive control over the instrumentality causing the injury 3. plaintiff did not in any way contributed to the injury( was not negligent) Modernly the jury can infer that the injury resulted from D‘s negligence. VICARIOUS LIABILTY Respondiate superior : if an employee commits a tort during ( scope of his employmen) his employer will be liable for that tort. ― jointly with employee). It has be established: D2 must be employer D1 must be acting within the scope of employment Not only negligence but also intentional torts Independent contractors:  One who hires an independent contractor is not generally liable for the torts of that person. unless: 1. Inherently dangerous activities; one who hires independent contractor will also be liable were the work is such there will be a high degree of danger to others. CONTRIBUTORY NEGLIGENCE Defined: originally if the conduct of the plaintiff fell below the reasonable standard of care for their own person, they would be barred from any recovery.  Last clear chance doctrine: if the defendant had the last clear chance to avoid the peril and failed LCC wipes out the P‘s contributory negligence.

Comparative Negligence: a plaintiff‘s recovery will be diminished the amount which his own negligence contributed to the injury. Joint and several liability: ( indivisible harm) More than one person responsible and are the proximate causes of P‘s indivisible harm. Each D is liable for the whole thing. ( e.g. action in concert/ car racing: one person crashes into an uncoming victim. Both J& S are liable.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL Under J&S liability a P can collect entire amount owed from any of the Ds that he chooses. He can also collect some from each but is only limited to one total recovery. Prop 51: ( economic and non-economic liability)   Economic: in CA even if you are 10% at fault and the other party is 90% at fault, you are both on the hook for 100% of damages. Non-economic: only liable for your percentage at fault

Contribution: multiple tortfeasors , one has paid more than his proportionate share of his total liability , then he can seek contribution from the others according to their share of liability . Indemnity: multiple tortfeasors consider whether one has the right to be indemnified by the other(s). It refers to complete reimbursement not a cost sharing. It is usually given when one tortfeasor is clearly less culpable than the others.  Most commonly the right of indemnity exists where one D is vicariously liable and the other D is directly liable. E.g. employer can get indemnification from his employee. Assuming that employer had no direct fault and his only liability was vicarious.  Damages (b)(1) For purposes of this section, the term ―economic damages‖ means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities. (2)For the purposes of this section, the term ―non-economic damages‖ means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.


Compensatory: normal tort damages given to compensate the victim to make them whole. Economic loss: 1. past and future lost earnings CACI 3903 C Past: P must prove the amount of income/salary/wages that he/she has to date. Future: must prove the amount/wages reasonably certain to lose in the future as a result of injury. if receiving future wages will receive current cash value. CACI 3904


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL 2. Medical past and future: to recover past or future medical expenses p must prove reasonable cost of medical expenses received . for future medical expenses, P must show the reasonable cost of reasoanably necessary medical care that he/ she is certain to need in the future. Non-economic 3. subjectively viewed: no present cash value : P must prove he/she is reasonably certain to suffer that harm.( enjoyment of life, disfigurement, physical impairment, anxiety). No fixed standard for deciding amount. Punitive damages:

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Given to punish D‘s conduct and to deter similar future conducts and must be proven by clear and convincing evidence. ( e.g. malice, operation, reckless disregard. E.g. drunk driving. Three elements to determine amount to give:  Conduct of the D( reprehensibility)  How does it relate to the actual damage sustain  What the D is worth.

Wrongful death: Adult: CACI 3921 Economic: plaintiff can get the financial support if any that the decedant would have contributed to the family. During the life expectancy that the dead person had before/ his/ her death and:  Loss of gifts/ benefits  Funeral and benefit expenses  Reasonable value of household services that dead erson have provided  Any future economic damages will be reduced to present value. Non-econimc: 2Qs: quantity life expectancy, quality of life at the moment proceeding  Loss of consortium  Companionship, comfort, care, assistance, effectiom  Society, moral support, sexual relation  No fixed standard exists for the amount to award  No grief, sorrow, mental anguish Judge Cardoza & Judge Andrews Cardoza( majority): anyone who is in the ―zone of danger‖ created by the defendants negligent conduct is a foreseeable plaintiff. Andrews( minority) anyone is a foreseeable plaintiff. 7


SECOND SEMESTER I. Defenses a. Plaintiff’s Conduct i. Contributory Negligence

Lexus Nexis: Contributory negligence is ―conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause . . . in bringing about the plaintiff's harm.‖ Contributory negligence is a complete defense to negligence. 1. When the defendant is engaged in Intentional, Willful or Reckless Conduct 2. Contributory negligence is not a defense to an intentional tort. Eg. One cannot defend against a battery by arguing that the P was negligent in failing to duck. 3. Extended to Willful, Wanton and Reckless conduct 4. Rational is that this conduct differs from negligence not only in degree, but also in kind and, therefore, the defense of contributory negligence is inapplicable. 5. Under the doctrine of contributory negligence, a plaintiff who fails to exercise reasonable care to avoid an injury is completely barred from recovery. Butterfield v. Forrester (K.B. 1809) 6. A defendant who has the ―last clear chance‖ to avoid causing injury may be liable even though the plaintiff was contributorily negligent. Davies v. Mann (Ex. 1842) 7. Last Clear Chance Doctrine: a. If the D had the opportunity to avoid the accident after the opportunity was no longer available to the Plaintiff, the Defendant is the one who should bear the loss. b. A ―transitional doctrine‖ on the road to comparative negligence. But actually froze the transition rather than speed it up. c. The jurisdictions that still follow contributory negligence apply this exception in at least 2 forms. (1) helpless and unable to avoid the danger, and (2) merely inattentive. 8. Alabama, Maryland, North Carolina, Virginia, and DC are the only states that still use Contributory Negligence.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL ii. Comparative Negligence 1. In an effort to avoid the harsh, all-or-nothing effects of contributory negligence, most jurisdictions have adopted comparative negligence. Under the doctrine, a negligent plaintiff has his damages reduced in proportion to his percentage of fault. 2. Three Types of Comparative Negligence: a. Pure Comparative Negligence (About 12 states including Florida, California, New York) i. P‘s damages are reduced in proportion to the percentage negligence attributed to him. Eg. If P is responsible for 90% of negligence that caused the damages, then he only recovers 10%. b. 50% Rule (About 20 states including Ohio, Pennsylvania, and Wisconsin) i. Recovery only if P‘s negligence does not exceed 50%. c. 49% Rule (About 12 states including Georgia, Arkansas, and Tennessee). i. Recovery only if P‘s negligence does not exceed that of the D. (P‘s negligence must be 49% or less) iii. Assumption of Risk 1. Express a. Parties may assume the risk of negligence pursuant to a written agreement, provided the agreement does not violate public policy. i. Winterstein v. Wilcom (Md. Ct. Spec. App. 1972) – P drag racer was injured when his vehicle hit a hundred-pound cylinder head that was lying on the racetrack. Prior to the race, P signed a release that stated he assumed all risks of injury and that he also waived all claims against D. ii. The bargaining process must be free and open, and the party assuming the risk must know and understand all terms. iii. Agreements involving the ―public interest‖ generally are invalid. b. 2 Basic Issues when D asserts that P expressly assumed a risk i. Whether the risk that injured P fell within the terms of the agreement. Eg. Drag racer signs form, but is hurt by employee of the D, who knocks P down.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL ii. Whether the K itself violates public policy and therefore should not be enforced. Eg. Patient agrees to assume all risks that had been explained to her in connection with her medical diagnosis and treatment in hospital. ―Overwhelming majority‖ of jurisdictions that found exculpatory agreements for providing of medical treatment invalid and unenforceable. c. Parties cannot assume the risk of more extreme forms of negligence, or of any intentional tort, or of the negligent violation of a statute designed for the public safety. 2. Implied a. Implied assumption of risk requires that one voluntarily encounter a known danger. In addition, after the person is aware of the danger, the person‘s actions must manifest consent to accept the particular risk. i. A person does not voluntarily accept a risk when no reasonable alternatives exist. Rush v. Commmercial Realty Co. (N.J. 1929) ii. Rush v. Commercial Realty Co. (N.J. 1929) – P tenant fell through a trap door in the privy. She sued the D, realty company for injuries. NO implied assumption of risk. b. The doctrine of comparative negligence, which has been adopted in most states, subsumes the doctrine of implied assumption of risk. c. Two Types of Implied Assumption of Risk i. Primary: D was not negligent either b/c he owed no duty to the P in the first instance, or b/c he did not breach the duty owed. ii. Secondary: affirmative defense to an established breach of a duty owed by the D to the P. d. Failure of P to take advanced precaution: i. P negligently fails to wear his seatbelt and is more seriously injured than he would have been if he had worn it. Should P‘s failure to wear a seatbelt be considered in his case against the other driver? Yes unless there is a statute precluding consideration, such conduct should be taken into account in assigning percentage of fault. b. Statues of Limitations and Repose


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL i. Statutes of limitation impose time limits within which suits must be brought. The statutes typically leave it for the court to decide when the time period accrues, or begins to run. ii. A cause of action for malpractice does not accrue until the injured party discovers or should have discovered the injury. Teeters v. Currey (Tenn. 1974) 1. 29 states follow this rule. 2. Teeters v. Currey (Tenn. 1974) – P had tubal ligation after her first pregnancy b/c of medical complications. Two years later, she was pregnant, and gave birth to a premature baby. Another tubal ligation was performed. P sued original doctor for malpractice. D contended that statute of limitations was 1yr and suit was barred. iii. Statutes of limitation often contain tolling provisions, stopping the running of the time period in certain situations. For example, the time period may be tolled when a party is a minor or incompetent, or when the defendant fraudulently conceals the presence of a cause of action. iv. Statute of limitations starts when the injuries occur, NOT when the product was manufactured. v. Some medical malpractice cases have held that a continuing tort occurred and statute of limitations did not start until course of treatment was complete. ―Battered Woman‘s Syndrome‖ vi. Problem with ―Discovery Rule‖—what happens if you discover injury 30yrs later? Some courts allow it , some don‘t. Some place outside limit on claims, some only allow in situations such as leaving objects in the P‘s body after surgery. vii. Statute of Repose 1. Limits potential liability by limiting the time during which a cause of action can arise. Eg. Products liability, and construction. II. Defenses (Cont) a. Immunities (NO CACI‘s found which r relevant)  An immunity avoids liability in tort under all circumstances, within the limits of the immunity itself.  Immunities have slowly disappeared in law (Rule of Law from Cases in each section to clarify each subdivision) viii. Families a. Interposal tort immunity in personal injury cases is hereafter abandoned. (Freeche v. Freeche) b. In Maryland there is no exception to the parentchild immunity doctrine in motor tort cases on the existence of compulsory automobile liability insurance coverage. (Renko v. McLean)



ix. Charities a. The doctrine of immunity of charitable institutions from liability for torts is hereafter abolished. (Abernathy v. Sisters of St. Mary‘s) x. Employer Immunity a. Workers Compensation statutes in effect in all jurisdictions provide that employees may recover from their employers for work-related injuries without having to show any fault on the part of the employer b. An employee who is injured on the job cannot file a tort claim against his employer even if the employer was negligent (remember this is for employers with workers compensation) xi. State and Local Governments a. The doctrine of immunity of charitable institutions from liability for torts is hereafter abolished (Ayala v. Philadelphia Board of Public Education) b. Absent a specific legislative mandate to the contrary, the government is not liable for the negligent failure of police authorities to protect citizens from crime. (Riss v. New York) c. Liability may arise when standard procedures are not followed in an emergency summons for police help. (DeLong v. Erie County) xii. The United States a. The federal government is immune from civil liability under the discretionary function exception if the federal government or its employees‘ conduct involves an element of judgment or choice of the type that the exception was designed to shield. (Deuser v. Vecera). xiii. Public Officers a. Public officers may be subject to personal liability for tortuous conduct committed in the course of their official duties. b. The pubic official may be shielded from liability if the officials conduct comes within common law official immunity which is separate from government immunity


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL c. So even in government immunity is abolished, official immunity still may protect public official. II. Vicarious Liability

Lexis Nexis Vicarious liability: A defendant may be jointly liable for the actions of another through vicarious liability. Vicarious liability automatically imposes tort responsibility on a defendant because of his relationship with the wrongdoer. The most frequent example of vicarious liability is when employers are held liable under a theory of respondeat superior for the actions of employees within the scope of their employment. b. Respondeat Superior a. An employer can be held liable when an employee leaves work early and foreseeably causes an accident while driving home. (Bussard v. Minimed,) b. A reasonable juror could conclude that driving a personal car to deliver sports tickets to one‘s fellow employees during work hours, and turning one‘s personal car into service station to get a maintenance estimate while delivering the sports tickets during working hors, are actions within the scope of an employee‘s employment. (O‘Shea v. Welch) III. Vicarious Liability ( Cont)i. CACI 3700: A person partnership corporation is responsible for harm caused by the wrongful conduct of his her its employee/agents while acting within scope of their employment/authority. Under the theory of respondent superior a principla employer is vicariously liable for an agent/employee‘s tort committed within the scope of agency/employment. ii. If a principal‘s potential liability is based solely on the acts of his or her agent then the principal cannot be held liable if eh agent is exonerated. iii. Liability may result from a principlas authorization or direction to perform a tortuous act, resulting in direct liability of the principal for his or her wrongful conduct. b. Independent Contractors i. CACI: 3701- Tort Liability Asserted Against Principal- Essentail Factual Elements ii. Name of plaintiff claims that he she was harmed by name of agents insert tort theory e.g. negligence. Name of plaintiff also claims that name of defendant is responsible for the harm because name of


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL agent was acting as his its agents employee insert other relationship e.g. partner when the incident occurred. If you find that name of agent insert tort theory harmed name of plaintiff then you must decide whether name of defendant is reasonable if name of plaintiff proves both of the following: That name of agent was name of defendant agent employee insert other relationship and That name of agent was acting within the scope of his her agency employment insert other relationship when he she bared name of plaintiff. Directions of use- the term name of agent in brackets is intended in the general sense, to denote the person of entity whose wrongful conduct is alleged to have created the principal‘s liability. Under other principles of law a principle may be directly liable for authorizing or directing agent‘s wrongful acts. One of the two bracketed first sentences would be used depending on whether the plaintiff is suing both the principal and the agent or the principal alone. If there is no issue regarding whether a principal-agent exists, see CACI no. 3703 Legal relationship Not disputed. This instruction may not apply where employer liability is statutory such as under the Fair Employment and housing act. Civil code section 2295 provides an agent is one who represents another called the principal in dealing with third persons. Such representation is called agency.‖ ―The rule of respondent superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. Equally Joint Enterprisewell established if somewhat surprising on first encounter, is the principal that an employee‘s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondent superior even through the employer has not authorized the employee to commit crimes or intentional torts. The employer is liable not because the employer has control over the employee or is in some way at fault but because the employer‘s enterprise creates inevitable risks as a part of doing business. Respondent superior is based on a deeply. Bailment rooted sentiment that it would be unjust for an enterprise to disclaim responsibility. Imputed Contributory Negligence for injuries occurring in the course of its characteristic activities. The supreme court has articulated three reasons for applying the doctrine of respondent superior (1) to prevent recurrence of the tortuous conduct: (2) to give greater assurance of compensation for the victim: and 93) to ensure that the victim‘s losses will be


iv. v.


vii. viii.

ix. x. xi.




xv. xvi. xvii. xviii.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL equitably borne by those who benefit from the enterprise that gave rise to the injury.‖ xix. The doctrine of respondent suepriro applies equally to public and private employers. Strict Liability ANIMALS a. When livestock (cows, fowl) escapes and trespasses on another‘s property: i. Majority View: When animals wander off the owner s strictly liable for the animals actions on other’s property 1. Exception: Zookeepers are only liable for negligent acts that lead to injury, UNLESS the zoo is operated for profit, then SL ii. Minority view: Neighbor should fence out the animal and protect own land 1. Owner has a responsibility to contain the animal inside their own land 2. If livestock eats corn/food from another‘s property, the owner has been unjustly enriched and owner should pay b. Wild v Domestic Animals: i. The owner is strictly liable for wild animals that cause damage (related to their ―wild‖ activities: mauling, biting, etc.) because the owner knew they were wild and assumes the risk 1. Lazy Lion: An owner is NOT strictly liable for activities of the wild animal that is not wild, ie tripping over lion (unless on notice about it) ii. The owner is NOT strictly liable for domesticated animals, owner is only responsible if the owner trains them to be vicious, or if the owner knows that the animal is vicious. 1. Provocation: When the dog bites after provocation, the owner is not strictly liable 2. One Free Bite Rule: P must show previous attacks to get SL c. Defenses i. NO contributory negligence, however comparative negligence would be ok Products Liability a. Development of Theories of Recovery i. Negligence : the manufacturer‘s or retailer‘s failure to use reasonable care in the design, manufacturing, labeling or marketing the product.  For defective product, a plaintiff suing must show the existence of the defect and that the defect would have been discoverable upon reasonable inspection

IV. V.



COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL ii. Warranty 1. Express: a seller may expressly represent that her or his goods have certain quality. If the goods turn out not to have these qualities, the purchaser may sue for this breach of warranty. a. Example: D, a car dealer promises that a particular car has shatterproof glass. While P is driving the car, a pebble hits the windshield, shatters the glass and damages P‘s eyes. P can sue D for breach of the express warranty that the glass would be shatterproof. UCC 2-13: 1) a statement of fact or promise about the goods2) a description 3) the use of sample model  No requirement of privity for breach of express warranty 2. Implied: the existence of warranty as to quality of goods can also be implied from the fact that seller has offered the goods for sale. a. Warranty of Merchantability: UCC 2-314 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. i. Meaning of merchantable: the goods must be fit for the ordinary purposes for which such goods are used. ii. Seller must be a merchant iii. The seller knows that buyer wants the goods for particular purpose and the buyer relies on the seller‘s judgment to recommend a suitable product.  NO PRIVITY REQUIRMENT FOR IMPLIED WARRANTY iii. Strict Liability in Tort The basic rule is that seller of a product is liable without fault for personal injuries caused by the product if the product is sold in a defective condition. Once is defect is shown to have existed, the seller is liable even though he used all possible care and even though the plaintiff did not buy the product from or have any contractual relationship with the seller.  Applies not only to the product manufacturer but also its retailer and anybody in the distributive train who is in business of selling such products.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL b. Product Defects i. Manufacturing Defect- a particular instance of the product is different from and more dangerous than all others because the product is deviated from the intended design. ii. Design Defect- it must be distinguished from a manufacturing defect. In design defect all the similar products manufactured by the D is the same, and they all bear a feature whose design is itself defective and unreasonably dangerous. iii. Warnings Defect 1. manufacturing defect: if a product is defectively manufactured no warning can save D from strict liability 2. Design defect: a warning will generally not shield D from strict liability 3. properly manufactured and designed products: if a product is properly designed and properly manufactured, D must nonetheless give a warning if there is a non obvious risk of personal injury from using the product. Similarly in this situation, D may be liable for not giving instructions concerning use, if a reasonable consumer might misuse the product in a foreseeable way.  Learned intermediary doctrine for drugs: in the case of prescription drugs, the warning generally needs to be given only to the physician who is the bridge between the manufacturer and the user.( in an ad that is toward general public, the warning mist be given to the user.) c. Proof RISK ULTILTY BASIS Liability for failure to warn is usually based on a negligence-like risk utility analysis.( when the foreseeable risk of harm imposed by the product could have been reduced or avoided by the provision of reasonable instruction or warning and the omission of the instructions or warning renders the product not reasonably safe. UNKNOWN AND UNKNOWABLE DANGERS If D can show that it neither knew nor in the exercise of reasonable care should have known of a danger at the time of sale, most courts hold that there was no duty to warn of the unknown danger. DANGER TO SMALL NUMBER OF PEOPLE If manufacturer knows that the product will be dangerous to small number of people, the need for warning will usually turn on the magnitude of danger. If


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL the danger is great enough, even a small number of potential bad results will require a warning. GOVERNMENT LABELING STANDARDS 1. Evidence: if D can show compliance with the federal or state VII. Products Liability ( Cont) a. Defenses i. PLAINTIFF’S CONDUCT 1. Comparative negligence principles apply to actions founded on strict products liability, reducing the injured party‘s recovery to the extent that his own conduct contributed to the injury. a. Most jurisdictions have extended comparative negligence to strict liability causes of action b. A few jurisdictions have refused to recognize comparative fault in products liability cases or have limited it to situations in which P has assumed the risk. c. Assumption of Risk: i. When P voluntarily confronts a known hazard, the restatement and many courts would bar the claim. Others would subject the P to the same fault apportionment as in comparative negligence. 2. A manufacturer may be liable for injuries caused by reasonably foreseeable, albeit normal, uses of its product. Ford Motor Co. v. Matthews (Miss. 1974) a. Manufacturer is not subject to liability for an unforeseeable abnormal use of the product. b. Even in cases based on negligence, there are unusual uses of a product that the seller had to anticipate, and against which he was required to guard, at least to the extend of a warning i. Standing on a char ii. Wearing a cocktail robe in close proximity to the flame of a kitchen stove. ii. Preemption and Other Govt Actions 1. Federal law may preempt actions based on a state‘s law of strict products liability, provided that Congress intended the state law to be preempted. 2. Medical Device Amendments Act of 1976 does not preempt a state common-law negligence action against the manufacturer of an allegedly defective medical device. Medtronic v. Lohr (U.S. 1996)


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL b. Defendants Other than Principal Manufacturers/Harm Other than Personal Injury i. Other Suppliers of Chattel 1. Not every party in the distribution chain is necessarily subject to strict products liability. For example, a used car dealer, who is outside of the original producing and marketing chain, is not subject to strict products liability. Peterson v. Lou Bachrodt Chevrolet Co. (Ill. 1975) a. The policy rationale is that remote distributors are in no position to exert pressure on manufacturers to create safe products. b. Many courts may decline to impose strict liability on sellers of used products. c. Many courts have extended strict liability to retailers and wholesale distributors. d. The occasional seller who does not hold himself out as having any knowledge or skill in the commercial sense will not be subject to strict liability. e. The maker of a component part not subject to further processing or substantial change in the manufacturing process is likely to be subject to strict liability if there is a defect in that part or material. ii. Services 1. Providers of services generally are not subject to strict products liability. Even where the services involve the provision of a product, such as a pacemaker, the service provider is not an integral part of the distribution process and is exempt. Hectors v. Cedars-Sinai Medical Ctr. (Cal. Ct. App. 1986) a. In many situations, the transaction will have characteristics of both a sale and a service. In those cases, the courts will not apply strict liability if the transaction is predominately a service, with only an incidental transfer of goods. b. All jurisdictions exempt providers of blood, blood products and human tissue from strict liability. iii. Harm other than Personal Injury

c. Legislation and Products Liability i. Many states adopted statutes similar to Restatement (Second) of Torts §402A in the 1960‘s.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL ii. With tort reform in the 1970‘s, states passed laws restricting the scope of products liability in order to protect manufacturers and reduce liability insurance premiums. iii. The federal government proposed a Uniform Product Liability Act in 1977, which was adopted by some states and followed by courts in other states in creating common law. iv. More tort reform legislation was passed in the 1980‘s and 1990‘s in further efforts to reduce insurance rates, protect manufacturers, and promote fairness. Pages 799-828-- Sara VIII. Nuisance Lexis Nexis Nuisance arises from an allegation of injury to person or property. As in other areas of tort, the injury need not be physical, and can include injury to rights or property enjoyment. The law of nuisance recognizes two distinct categories of claims: private nuisance and public nuisance. Defendant's conduct may create an actionable public nuisance when it interferes with the public health, safety or welfare. It may constitute a private nuisance when it interferes with another's current possessory or beneficial interest in the use or quiet enjoyment of land. The complainant in private nuisance needn‘t own the property; he need only be a lawful occupant or the holder of one or more other use rights. In contrast, for a suit in public nuisance, the complainant needn‘t have a property interest in any property affected by defendant's conduct. A defendant may incur liability in both private and public nuisance. a. Public Nuisance ( CACI 2020) i. An unreasonable interference with a right common to the general public. Circumstance when interference is unreasonable is a) whether the conduct involves a substantial interference with the public health, public safety, the public place, the public comfort or the public convenience or b) whether the conduct is prescribed by a statute, ordinance or administrative regulation or c) whether the conduct is of a continuing nature or has produced a permanent or long lasting effect and, to the actor‘s knowledge has, a substantial detrimental effect upon the public right Lexis Nexis Public nuisance is defined widely as ―an unreasonable interference with a right common to the general public.‖ Restatement § 821B. That section states that ―circumstances‖ for such evaluation include: ―(a) whether the conduct involves a substantial interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect and, to the actor's knowledge, has a substantial detrimental effect upon the public right.‖



b. Private Nuisance ( CACI 2021) i. A tort to an owner or possessor of land. An interference which might be with the physical condition of the premises, as by blasting or vibration that damages a house; with the health of the occupant, as by unsanitary conditions on adjoining property; with his comfort or convenience, as by smoke, odors, noise or heat; or merely with his peace of mind, as in the case of a nearby bawdy house or funeral parlor. Threat of future injury might be private nuisance as well as far as stored explosives or a vicious dog. ii. IMPORTANT --- Person purchasing real estate next to nuisance doesn‘t mean they are coming to the nuisance. IX. Defamation -CACI 1700 to 1707 per se 1700, per quod 1701

CACI’S Public Figure (Look at NY Times Case) Standard: (a) malice (b) intentional (c) reckless Burden of Proof: Plaintiff has to prove that its false Per Se: CACI 1700 Per Quod: CACI 1701 Private Figure/Public Concern (Look at Gertz) Standard: States can do what they want Burden of Proof Plaintiff has to prove that its false Per Se 1702 Per Quod 1703 Private Figure/Private Concerns (Look at Dun & B) Standard : States can do what they want Burden of Proof Defenant has to prove that it is true Per Se 1704 Per Quod 1705 a. Nature of a Defamatory Communication (1) If a statement may be interpreted in both a defamatory and nondefamatory manner, it is the province of the jury to determine which one the general public would have taken. (Beli v. Orlando Daily Newspapers, Inc.)  You look at the effect of the words and if those words are capable of being deemed defamatory then a jury has to decide that, if on the other hand there‘s just one meaning and its unambiguous then the court can decide.  Standard: ―a logical function of the jury is to decide whether the plaintiff has been lowered in the esteem of those to whom the idea was published.‖


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL (2) Libel consist of utterances that arouse hatred, contempt, scorn, or shame in the minds of people whether or not those persons are ―right thinking‖ people. It is defamatory as a matter of law to say that a person is an agent of the communist party. (Grant v. Reader‘s Digest Ass‘n) PLEADING DEFAMATION  Pleading something its not just liable per se but you need to specifically plea and prove what the other facts are that make it defamatory  Its doesn‘t say it on its face but you have to prove it by string of facts and evidence. (3) To claim truth as a defense, it must be shown that the statements in the article were substantially true, not that other acts of a different nature occurred. (Kilian v. Doubleday & Co., Inc.)  Substantially true means doesn‘t have to be true by a burden of proof but has t be some evidence that you can prove that it could be substantially true. (4) Where a group or class disparaged is a large one, absent circumstances pointing to a particular plaintiff as the person defamed, o individual member of the group or class has a cause of action. However, where the group or class libeled is small, and each and every member of the group or class is referred to, then an individual member can sue. (Neiman-Marcus v. Lait)  When the group is small and each and every person in the group is effected then each individual member could sue for defamation but if the group is too large then not. In this case the small group was 25 and 382 was too big a group. (5) The test of identification in a libel action is whether is reasonable person, viewing the work, would identify the ―fictional‖ character described therein as the plaintiff. (Bridrim v. Mitchell)  Just changing someone‘s name doesn‘t get you off the hook if its still clear who your taking about. b. Libel and Slander Lexis Nexis Slander and Slander Per Se: Where the defamation is characterized as slander, the plaintiff generally must meet the substantial burden of pleading and proving special damages. Since early common law, however, certain slanderous statements were deemed so horrible that reputational injury to plaintiffs could be presumed even without any proof of special damages. The four traditional slander per se categories that permit presumed reputational damages absent special damage are: (1) communications that directly call into question the plaintiff's competence to perform adequately in her trade or profession; (2) statements claiming the


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL plaintiff has a current, loathsome disease; (3) allegations of serious criminal misbehavior by the plaintiff; (4) and, suggestions of a lack of chastity in a woman. Libel and Libel Per Quod: Under the traditional view, which remains the position of most jurisdictions and of the Restatement, any libel plaintiff may recover general (presumed) damages. Some states have narrowed this approach, however, and have distinguished libel per se (libel on its face) from libel per quod (libel that requires extrinsic evidence such as inducement or innuendo). In these states, the plaintiff may recover general damages for libel per se. For libel per quod, however, the plaintiff must show special damages (as in the slander context) unless the libel falls into one of the slander per se categories.  Libel is Written word  Slander is Oral a. Defamation through media of motion pictures, television, or radio is considered libel, not slander. (Shor v. Billingsley) b. Words which claim that a man is having extramarital intercourse are not actionable without a demonstration of special damages, since they do not disparage the man‘s character or reputation (Terwilliger v. Wands)

c. Publication a. For a cause of defamation to lie there must be publication to third parties of the defamatory statement in such a manner so as to be understood by those hearing the statement. (Economopoulos v. A.G. Pollard Co.) b. The publication of a book, periodical, or newspaper containing defamatory matter gives rise to but one cause of action for libel, which accrues at the time of the original publication and the statute of limitations runs from that date. (Ogden v. Association of United States Army) d. Basis of Liability i. Actual Malice, Burdens of Proof, and the Press IF you are deemed to be a public person who have to prove (1) That it is False (2) That there is Malice 1. intentional 2. reckless disregard (3) Actual malice (4) Recklessness


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL (5) If the person has good faith belief that what they are saying is true (6) But good faith entails if the source is unverified annoynmous, or obvious reasons to doubt the informality of the person telling Purposeful avoidance of known sources or information is considered reckless ii. Private Plaintiffs a. A Public official may not recover damages for a defamatory falsehood concerning his official conduct unless he can prove that the statement was made with actual malice. (NewYork Times Co. v. Sullivan) b. In a defamation suit, a public official must prove that defendant had serious doubts as to the truth of his publication in order to demonstrate actual malice. (St. Amant v. Thompson) X. Defamation ( Cont) a. Basis of Liability ( Cont) 1. SPEECH OF PRIVATE CONCERN One who publishes a false and defamatory communication concerning a private person , or concerning a public official or public figure in relation to purely private matter not effecting his conduct, fitness or role in his public capacity is subject to liability if : a) knows that the statement is false and that it defames the other and, b) acts in reckless disregard of these matters, or c) acts negligently in failing to ascertain them. Note: private persons can prevail in defamation actions merely upon proof of negligence. In Gertz case it was required that damages may not be presumed and that the plaintiff must prove actual injury. However, where a private person can establish malice special damages will be presumed. P not a public figure- may recover actual damage just with proof of negligence whether or not the matter of public concern is involved. If public interest is involved, P may recover presumed and punitive damages only upon showing an actual malice. PUBLIC FIGURE: Definition: a public figure is one who voluntarily injects himself into the public eye or who has achieved such pervasive fame or notoriety that he is known to general public. A public official may not recover damages for a defamatory falsehood concerning his official conduct unless he can prove that the statement was made with actual malice.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL So, if blic figure and matter is public interest, P may not recover anything unless P proves actual malice. FALSITY The standard liability for a defamation which a publisher or broadcaster publishes about a private individual is set by states. The private defamation plaintiff must prove falsity or reckless disregard for the truth to recover any damages other than compensation for actual injury. OPINION: Expressions of opinion that imply an assertion of objective fact may be the basis of liable action. So, a published opinion is not defamatory unless it conveys to the recipient a provably false assertion of a fact or facts. You must determine from the totality of the circumstances whether such an interpretation was conveyed. CONDITIONAL PRIVILAGE: Immunity from liability for libelous or slanderous statements communicated in the execution of a political, judicial, social or personal obligation, unless it is demonstrated that the statement was made with actual malice and knowledge of falsity.  Statements in the Defendant‘s interest: if circumstances induce a correct or reasonable belief that there is information that affects a sufficiently important interest of the publisher and the recipient‘s knowledge of the defamatory matter will be of service in the lawful protection of the interest.  Statements in the interest of third person: if circumstances induce a correct or reasonable belief that there is information that affects a sufficiently important interest of the recipient or third party and the third party is the one whom the publisher is under a legal duty to publish the defamatory matter or is a person to whom its publication is otherwise within the generally accepted standards of decent conduct.  Statements in the public interest: if circumstances induce a correct or reasonable belief that there is information that affects a sufficiently important public interest. ABSOLUTE PRIVILAGE:  Judicial Privilege: all participants in judicial proceedings have an absolute privilege to publish defamatory matters concerning another, if it has some relations to the proceeding  Legislative Proceeding: legislators including federal, state and local officers and witnesses in legislative proceedings have an absolute privilege to publish defamatory matter concerning another.  Husband and Wife. A husband or a wife is absolutely privileged to publish to the other spouse defamatory matter concerning third person. REMEDIES: Presumed or general damages refelect harm of a non-pecuniary nature, for instance, humiliation, mental anguish, harm to reputation with no financial repercussions. If P proves libel or slender per se or special damages, general damage will be tacked on.



CA REQUIRES PROOF OF SPECIAL DAMAGES FOR ANY LIBEL PER QUOD. Privacy—CACI 1800 a. Right of Privacy – The right to personal autonomy. The right of a person and the person‘s property to be free from unwarranted public scrutiny or exposure. b. Invasion of Privacy ( CACI 1801) – An unjustified exploitation of one‘s personality or intrusion into one‘s personal activity, actionable under tort law and sometimes under constitutional law. i. To establish a cause of action for invasion of privacy by appropriation of one‘s name and likeness, the plaintiff must demonstrate that the defendant used her name or likeness, that the use of her name or likeness was for the defendant‘s own benefit, damages, and causation. c. False Light ( CACI 1802) - This is when false statements are published about a person in which actual malice must be proven to recover damages. i. In order to recover for IIED, public figures must show that a false statement of fact was made with actual malice Lexis Nexis False light: The elements of false light which must be established by all plaintiffs include the defendant's (1) publicizing (2) false facts (3) that a reasonable person would object to. In the case of a matter of public interest, all plaintiffs (public or private) must in addition establish that the defendant acted with New York Times malice (knowledge of falsity or reckless disregard toward the truth). d. Appropriation ( CACI 1803 & 1804) – Appropriation requires more than mere publication of the plaintiff‘s name or likeness: i. The value of a plaintiff‘s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. e. Public Disclosure of Private Facts XII. Civil Rights a. CACI 300 – Violation of Federal Civil Rights i. [Name of Plaintiff] claims that [Name of Defendant] violated his/her civil rights. To establish this claim, [ name of plaintiff] must prove the following: 1. That [ Name of Defendant] [ intentionally/ other applicable state of mind], [ insert wrongful act]; 2. That [ name of defendant] was acting or purporting to act in the performance of his/her official duties; 3. That [name of defendant] ‗s conduct violated [name of plaintiff] ‗s right [ insert e.g. “of privacy”] ; XI.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL 4. That [ name of plaintiff] was harmed ; 5. That [ name of defendant]‘s [ insert wrongful act] was a substantial factor in causing [ name of plaintiff]‘s harm. I. Misuse of Legal Procedure- CACI 1500, 1501, 1502 and 1520 a. In order to establish a cause of action for malicious prosecution, a favorable termination of the underlying action must be shown, as well as lack of probable cause to institute the prosecution and malice. (Texas Skaggs Inc. v. Graves) b. An attorney owes no actionable duty of care to an adverse party. (Friedman v. Dozorc) c. An action for abuse of process is not based upon a favorable termination of the underlying proceeding. (Grainger v. Hill) Misrepresentation -CACI 1900 (1) The tort action of deceit (2) An action for breach of contract, when the representation is found to be an express or implied term of the contract itself. (3) A negligence action for negligent misrepresentation or misstatement. This (4) A suit in equity for negligent misrepresentation or misstatement. (5) An action at law for restitution to recover back what the plaintiff has parted with, or unjust enrichment, which the defendant has received from it.


Lexis Nexis Misrepresentation: The tort of fraudulent misrepresentation or deceit provides for recovery for pure economic loss, unassociated with other injury. The tort consists of five elements: (1) a material misrepresentation; (2) the defendant acted with the requisite scienter: she knew the statement was false or made it with reckless disregard as to its truth or falsity; (3) the defendant intended to induce reliance; (4) the misrepresentation caused plaintiff's justifiable reliance; (5) pecuniary damages resulted to the plaintiff.


Concealment and Nondisclosure 1. There is no liability for bare nondisclosure. (Swinton v. Whitinsville Savings Bank)

b. Basis of Liability o An action in deceit will not lie for a false representation made with an honest belief in its truth. (Derry v. peek) o An action for damages for negligent misrepresentation will lie where the speaker owes a duty to give correct information. (International Products Co. v. Erie R.R. Co)


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL XIII. Misrepresentation ( Cont) a. Basis of Liability (Cont) i. To Third Persons a. CACI-1900- Plaintiff claims that defendant made a false representation that harmed him/her. To establish this claim plaintiff must prove all of the following: that defendant represented to plaintiff that an important fact was true. That defendant‘s representation was false. That defendant knew that the representation was false when he made it or that he made the representation recklessly and without regard for its truth. The defendant intended that plaintiff rely on the representation: That reasonably relied on defendant‘s representation. That plaintiff was harmed and that the plaintiff reliance on the defendants representation was a substantial factor in causing his /her harm. b. Directions for use- if it is disputed that a representation was made, the jury should be instructed tat a representation may be made orally, in writing or by nonverbal conduct. c. CACI-1903- plaintiff claims he she was harmed because defendant negligently misrepresented an important fact. To establish this claim must prove all of the following: that name of defendant represented to name of plaintiff that an important fact was true. That defendant representation was not true: That defendant had no reasonable grounds for believing the representation as true when he she made it. That defendant intended that plaintiff rely on this representation: that plaintiff reasonably relied on the defendant representations: that plaintiff was harmed and that plaintiff reliance on defendant‘s representation was a substantial factor in causing his her harm. b. Reliance a. CACI-1907- Plaintiff relied on defendants misrepresentation/concealment if it caused him/her to e.g. ― buy the hours‖, and if he she would probably not have done so without such misrepresentation/concealment. It is not necessary for a misrepresentation concealment to be the only reason for conduct it is enough if a misrepresentation substantially influenced plaintiff‘s choice even if it was not the only reason for his her conduct.


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL b. CACI-1908- you must determine the reasonableness of the plaintiff‘s reliance by taking into account his her mental capacity knowledge, and experience. This instruction is appropriate for cases in which evidence of the plaintiff‘s greater or lesser persona knowledge, education, experience, or capacity has been introduced. Trial of class actions may require a different instruction.

c. Opinion a. CACI-1904 Ordinarily an opinion is nt considered a representation of fact. An opinion is a person belief that a fact exisit, a statement regarding a future event ir a judgment about quality value. authenticity or similar matters. However, defendant‘s opinion is considered a representation of fact if plaintiff proves that: defendant claimed to have special knowledge about the subject matter the plaintiff did not have or, name of defendant made a representation, not as a casual expression of belief, but in a way that declared the matter to be true; or, defendant had some other special reason to expect that plaintiff would rely on his or her opinion. Directions for use- this is not a stand alone instruction. It should be read in conjunction with one of the elements instructions. The second bracketed option appears to be limited to case involving professional opinion. Alternative bracketed options that do not apply to the facts of the case may be deleted. d. Law a. CACI- 1905- A fact promise is important if it would influence a reasonable persons judgment or conduct. A fact or promise is also important if the person who represents /makes it knows that the person to whom the representation/promise is made is likely to be influenced by it even if a reasonable person would not. b. CACI-1906- Misrepresentation made to persons other than the plaintiff. Defendant is responsible for a representation that was not made directly to plaintiff if he she made the representation to a group of persons including plaintiff or to another person,


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL intending or reasonably expecting that it would be repeated to plaintiff. An instruction on concealment made to a person other than the plaintiff is not necessary; this point is covered by the third option of element 1 in CACI no. 1901, concealment. Civil code section 1711 provides: one who practices a deceit with intent to defraud the public or a particular class of persons is deemed to have intended to defraud every individual in that class who is actually mislead by the deceit. It is rue in order for a defendant to be liable for fraud he must intend that a particular representation or concealment be elide upon by a specific person or persons. However, it is also established that a defendant cannot escape liability if her makes a representation to one person while intending or having reason to expect that it will be repeated to and acted upon by the plaintiff (or someone in the class of persons of which plaintiff is a member). This is the principle of indirect deception described in section 533 of the restatement second of torts. The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation although not made directly on the other is made to a third person and the maker intends or has reason to expect that its terms will be repeated to is substance communicated to the other and that it will influence his conduct in the transaction or type of transaction involved. Comment d to section 533 makes it clear the rule of section 533 applies where the maker of the misrepresentation has information that gives him special reason to expect that the information will be communicated to others and will influence their conduct. Comment g goes on to explain that it is not necessary that the make of the misrepresentation have the particular person in mind. It is enough that it is intended to be repeated to a particular class of persons. e. Prediction and Intention a. CACI- 1907- see above b. CACI-1908- see above f. Damages a. CACI-1923- out of pocket rule. If you decide that plaintiff has proved his claim against defendant you


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL also must decide how much money will reasonably compensate for the harm. This compensation is called damages. The amount of damages must include an award for all harm that defendant was a substantial factor in causing, even if the particular harm could not have been anticipated. Plaintiff must prove the amoudn tof his damages. However plaintiff does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages. To decided the amount of damages you must determine the fair market value of what plaintiff gave and subtract from that amount the fair market value for what he received. Fair market value is the highest price that a willing buyer would have paid in the date of the transaction to a willing seller assuming: that there is not pressure on either one to buy or sell or that the buyer and seller know all the uses and purposes for which the item is reasonably capable of being used. Plaintiff may also recover amounts that he reasonably spent in reliance on defendant false representation failure to disclose false promise if those amounts would not otherwise have been spent. b. CACI- 1924- damages benefit of the bargain rule- if you decide that plaintiff has proved his claim against defendant you also must decide how much money will reasonably compensate for the harm. This compensation is called damages. The amount of damages must include an award for all harm that defendant was a substantial factor in causing even if the particular harm could not have been anticipated. Plaintiff must prove that amount of her damages. However plaintiff does not have to prove the exact amount of damages that will provide reasonable compensation for the harm you must not speculate or guess in awarding damages. To determine the amount of damages you must, determine the fair market value that plaintiff would have received if the representation made by defend a had been true: and subtract the fair market value of what he did receive. The resulting amount is plaintiff damages. Fair market value is the highest price that a willing buyer would have paid to a willing seller, assuming: that there is no pressure on either one to buy or sell


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL or that the buyer and seller know all the uses and purposes for which the insert item is reasonably capable of being used. Fair market value must be determined as of the date that plaintiff discovered defendant false representation failure to disclose. Name of plaintiff ma also recover amount that he she reasonably spent in reliance on defendants false representation failure to disclose false promise if those amounts would not otherwise have been spent. There is a split of authority regarding whether benefits of the bargain damages are ever appropriate in a fraud case: The cases are not consisted in their treatment of the measure of damages for breach of fiduciary duties. This instruction should be modified in cases involving promissory fraud: in cases of promissory fraud the damages are measured by market value as of the date the promise was breached because that is the date when the damages occurred. XIV. Interference with Advantageous Relationships 1) Business Relations Injurious falsehood or Trade libel applies to statements that are injurious to plaintiff‘s business or products. Element necessary to the cause of action: a) A false statement of a kind calculated to damage a pecuniary interest of the plaintiff. b) Publication to a third person c) Malice in the publication d) Resulting special damage to the plaintiff, in the form of pecuniary loss. Special Damage: pleading and proof of special damage are held to be essential to any cause of action for injurious falsehood. The damage must consist of pecuniary loss and personal elements of damage such as mental distress, which are recoverable for defamation, are sufficient to sustain the action. NOTE: when the damages claimed consist only of loss of prospective contracts or customer, the older and still prevailing rule is that the plaintiff must identify the particular customers who have refrained from dealing with him, and specify the transactions of which he claims to have been deprived. TITLE A defamatory statement made with intent to disparage a party’s title to real or personal property. 2) Interference with Contractual Relations Any type of contract may be the basis for this type of tort action. The contract must


COMPLETE 1st and 2nd SEMESTER OUTLINE FOR TORTS FINAL  Be in force and effect  Be legal  Not be opposed to public policy The exception is the contract to marry. MANNER OF INTERFERENCE: the defendant must be shown to have caused the interference. PREVENTING PERFORMANCE: that is when the defendant prevented the performance of the contract or has made the performance more difficult. In interference with the contract INTENT is important. Liability has not been extended to do the various forms of negligence by which the performance of a contract may be prevented or rendered more burdensome. 2)Interference with prospective Advantage Probable expectancy interest of future contractual relations of a party.  The prospect of obtaining employment  The opportunity of obtaining customers. NON-COMMERCIAL TRANSACTIONS: Earlier cases held that recovery would be denied for interference with an expected gift or legacy under a will, modern view is to protect such non- commercial expectancies. NOTE: as with intent to interfere, with the usual basis of this action turns upon the defendant‘s motive or purpose. Earlier decisions required malice, now it is required that the conduct is unlawful itself.


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