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NTS: NOTES:
(1) Intent (2) Extreme and Outrageous Conduct (3) Causing Severe Emotional Distress Mere insults not outrageous; If conduct is continuous, by a common carrier/inn keeper, or if P is in a fragile class (old, young, pregnant, minority), these can make conduct outrageous
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ((1) Breach of duty by D (2) As a result of “near miss”, P has subsequent
physical manifestations; Bystander Recovery for NIED where a distressed P witnesses a negligent injury to a close family member
TRESPASS TO LAND
ELEMENTS: NOTES: (1) Physical Invasion (2) Of P’s Land Physical invasion can be by person or by tangible object and includes subsurface and air space; Entry can be intentional (mistake of ownership no defense) or negligent/reckless entry (damage to land required for liability); Accidental entry has no liability (1) Intent (2) Some (tc)/Great (c) Damage (3) To P’s Personal Property Remedy for conversion is cost of repair OR full value of item; whereas trespass to chattel is only cost of repair
TRESPASS TO CHATTEL/CONVERSION
ELEMENTS: NOTES:
DEFENSES TO INTENTIONAL TORTS “ND COPS”
CONSENT:
(1) Need Capacity (2) Express (no fraud or duress) OR Implied (custom or D’s reasonable interpretation of P’s conduct) (3) Within Scope
DEFENSE OF
SELF/OTHERS/ PROPERTY: (1) Timing (tort in progress or imminent/no revenge) (2) Accuracy (D must reasonably believe interests threatened/reasonable mistakes allowed) (3) Degree of Force (equal to aggressor/deadly force only if a life in danger) (1) Enter land of another in emergency situation to avoid injury to himself or property damage to chattel (2) Not liable for trespass but may be liable for damage caused to property depending on type of necessity (3) Types: Public (not liable for damages); Private (liable for damages caused- no nominal or punitive) (4) Landowner cannot chase person away or will be liable for any damages that result, such as battery. Parent/teacher may use reasonable force to discipline
NECESSITY:
DISCIPLINE:
DEFAMATION
ELEMENTS: NOTES:
(1) Defamatory Statement (2) Of and Concerning P (3) Publication (4) Proof of Damages Mere name-calling not defamatory; Allegation must reflect negatively on trait of character (honesty/loyalty/sexual); P must be alive; Publication must be to at least one other party and intent not required; LIBEL (written) does not require proof of damages, it is presumed; SLANDER (oral) requires proof of economic damages UNLESS SLANDER PER SE (Regarding (1) Business/Profession; (2) Chastity of Woman; (3) Crime of Moral Turpitude; (4) P Has Loathsome Disease) For Public Official or Public Concern, 2 additional elements required: (1) P Must Prove Fault by D (if P is public figure, D must have acted in malice; if P is private, D must have acted negligently) (2) P Must Prove Falsity of Statement (1) Consent (capacity; express/implied); (2) Truth (D has burden unless constitutional def.); (3) Privilege (Absolute privilege to spouses or officers of gov. branches engaged in their duties; Qualified Privilege regarding letters of recommendation and communication with police)
CONST. DEF.: DEFENSES:
PRIVACY
APPROPRIATION:
“IF A.D.”
(1) D Uses P’s Name or Picture (2) For Commercial Advantage (3) Newsworthy Exception (1) D’s Invasion on P’s Solitude (place where privacy expected/no trespass required) (2) Objectionable to Average Person
INTRUSION:
FALSE LIGHT:
(1) Widespread Dissemination of Major Misrepresentation About P (doesn’t need to be defamatory) (2) Objectionable to Average Person (Mistake is not defense; in contrast to defamation which allows economic recovery, false light also allows for intangibles such as emotional and mental) (Dual life fact pattern- gay in private life but not at work, work discloses, it isn’t actionable)
DISCLOSURE: (1)Widespread dissemination of Confidential Info about P (2) Objectionable to Average Person (3) Newsworthy Exception DEFENSES:
(1) Consent (2) Defamation Privileges (ONLY for false light and disclosure) (spouses, government officers, qualified privilege for socially useful speech); No defenses for mental handicap, insanity, or stupidity
NEGLIGENCE
ELEMENTS: DUTY:
(1) Duty (includes Standard of Care) (2) Breach (3) Causation (4) Damages Standard: Reasonably prudent person acting under similar circumstances (unless D has superior knowledge) Foreseeability: Duty to foreseeable victims; P must be within “zone of danger” (Cardoza); Rescuers ALWAYS foreseeable and owed duty No duty to render assistance UNLESS special relationship, such as (1) common carrier/passenger (2) innkeeper/guest (3) landlord/tenant (4) jailers/prisoner (5) schools/pupil Special duties: (1) Child (subjective standard; similar age/experience/intelligence/similar circumstances; no negligence if under 4; UNLESS child engages in adult activity using operating something with a motor, then held to adult standard) (2) Professionals (duty of care of average member of profession in similar community); (3) Land Occupiers (owe different duties based on entrant/see list):
To Undiscovered Trespassers (No duty) To Discovered/Anticipated Trespassers (Duty to protect from (1) known (2) man-made (3) hidden death traps; Duty to warn and make safe it is highly dangerous, artificial, and not obvious) To Licensees (permission to enter nonpublic property, such as social guest) (Duty to protect from (1) known (2) hidden traps; Duty to warn and make safe if it is dangerous and not obvious) To Invitees (permission to enter public property, such as store customer) (Duty to protect from (1)reasonably knowable (2) hidden traps; Duty to warn and make safe if it is dangerous AND not obvious; Duty to inspect) Firefighters/Police: Considered licensees and they assume risk of their job/have other means of recovering for injuries Child Trespassers (AKA “Attractive Nuisance Doctrine”): Duty to protect, if (1) an artificially dangerous condition exists; (2) children are likely to trespass; (3) children because of their youth, age, or immaturity fail to appreciate the danger or realize the risks; AND (4) the utility of maintaining the condition is slight compared to the risks.
Duty to protect satisfied in 2 ways: (1) fix or repair dangerous condition OR (2) give a warning No duty to act affirmatively (i.e., rescue someone in peril) UNLESS (1) P caused peril (2)pre-existing relationship (3) already started to rescue, can’t stop Statutory Standard of Care When there is a criminal or regulatory statute that concerns the negligence issue in the tort case, it is negligence per se (no reasonableness test), if two conditions are met (a) P is member of class the statute was designed to protect (b) Injury is in the class of risks the statute was designed to prevent (c) Exceptions: If statutory compliance would be more dangerous than statutory violation, we will not borrow the statute even if the two part test is satisfied; Compliance is impossible under the circumstances
BREACH: CAUSE:
Remember: Res Ipsa Loquitor (“thing speaks for itself”); accident like this does not happen in absence of negligence and D was in position to do it; helps to avoid directed verdict and gets into hands of jury ACTUAL CAUSE (“But For Test”): P must show link between breach and injury; D will try to show that injury would have occurred regardless; If multiple D’s: (1) Mingled Causation (both of them did it)- Did both D’s contribute in a substantial way? (2) Unascertainable Causation (one of them did it)- Burden on Ds to prove either one was innocent. PROXIMATE CAUSE (Legal Cause): Liable if injury foreseeable; Not foreseeable on BAR: an act of God, criminal acts of 3rd parties, and intentional torts of 3rd parties; Foreseeable on BAR: Negligent medical treatment, Negligent rescue, Reactions of others, Subsequent disease or accident
DAMAGES: DEFENSES:
Must prove damages; Eggshell Skull Doctrine states that you take the P as you find them CONTRIBUTORY NEGLIGENCE (P will recover nothing if at all negligent; EXCEPTION: Last Clear Chance: P can still recover if D had the last clear chance to avoid the accident) PURE COMPARITIVE NEGLIGENCE (Strictly by the numbers; If P was 10% at fault, she will receive 90% of damages) PARTIAL COMPARITIVE NEGLIGENCE (P can only recover if she was less than 50% at fault) ASSUMPTION OF RISK (P may not be able to recover if she (1) knew of risk AND (2) proceeded despite the risk)
STRICT LIABILITY
ANIMALS:
Strictly liable for injuries caused by (1) Domesticated Animals (Not strictly liable for dog bites UNLESS D has knowledge of dog’s vicious propensities) (2) Trespassing Cattle (3) Wild Animals
ULTRA-HAZ
ACTIVITIES: PRODUCTS LIABILITY:
Ultra-hazardous and abnormally dangerous activities; Ultra-hazardous defined as activity that (1) CANNOT be made safe (2) poses severe risk of harm (3) is uncommon in the area where conducted; Examples are explosives, highly dangerous chemicals or biological substances, and anything involving nuclear energy or radiation Requirements: (1) D must be a merchant in chain of sale (2) Product must be defective (3) Defect existed when left D’s hand (presumption that it was defective when left D’s hand) (4) P must show the he was foreseeable user, making a foreseeable use of the product at time of injury (5) P has to suffer physical harm (not just economic harm); Defect can be manufacturing or design ((a) not safe for intended use (b) could have been made safe without impact on cost or utility (c) failure to adequately warn (1) Comparative Negligence (2) Assumption of Risk (3) NO contributory negligence Multiple claims may be available for products liability: (1) Strict products liability (2) Negligence (3) Implied Warranties (4) Express warranty/misrepresentation
DEFENSES: THEORIES:
WARRANTIES
3 TYPES:
Express Warranty: (1) Could arise from a statement of fact or promise about goods OR description of goods OR use of sample or floor model (2) No privity requirement (3) Creates strict liability (as long as representation not true) Implied Warranty of Merchantability: Goods are fit for ordinary purpose Implied Warranty of Fitness for Particular Purpose: Goods fit for particular foreseeable purpose: (1) Seller knows buyer wants good for a particular purpose AND (2) buyer relies on seller’s judgment to recommend a suitable product
DEFENSES: COMPARE:
(1) Disclaimers can disclaim merchantability but must be conspicuous (2) Seller limitation of damages clauses for personal injury automatically unenforceable 2 MAJOR DIFFERENCES FROM STRICT LIABILITY: (1) Pure economic harm (easier to recover for warranty than for strict liability) (2) Statute of Limitations usually shorter on strict liability claims
INTERFERENCE WITH BUSINESS RELATIONS
ELEMENTS:
(1) Existence of valid contract between P and 3rd party (or business expectancy) (2) D knows of contract (or expectancy) (3) Intentional interference causes breach (4) Damages occur
NUISANCE
ELEMENTS:
PUBLIC NUISANCE: Unreasonable interference with health, safety, or property rights of community (Remedy is usually an injunction) PRIVATE NUISANCE: Substantial interference with another private individual’s use or enjoyment of property that he actually possesses (Remedy can be injunction or money damages) DEFENSES: (1) Contributory negligence (2) Assumption of risk
MISREPRESENTATION
INTENTION’L: NEGLIGENT:
(1) Misrepresentation of material facts (2) D knew statement false (3) Intent to induce P to act/not act (4) P relied (5) Causation (6) Damages (actual pecuniary loss); Non-disclosure not actionable unless fiduciary relationship (1) Misrepresentation by P in bus/prof capacity (2) Breach of duty owed to foreseeable P (3) P relied (4) Causation (5) Damages
VICARIOUS LIABILITY
DEFINE: TYPES:
Imposition of tort liability of one person for acts of another due to relationship between parties EMPLOYER/EMPLOYEE (Respondiat Superior): (1) Responsible for torts of employee if tort committed within scope ofemployment (2) Detour v. Frolic HIRING PARTY/IND. CONTRACTOR: (1) NO vicarious liability (2) EXCEPTION (landowner is vicariously liable if an ind. contractor hurts invitee on land OR ind. contractor engaged in non-delegable duty OR ind. contractor involved in ultrahazardous activity AUTO OWNER/AUTO DRIVER: Owner NOT liable for accidents that happen when driver borrows car UNLESS owner lends car so driver can do errand for him (becomes owner’s agent and there is vicarious liability); Permissive use doctrine imposes liability for damage caused by anyone driving with auto owner’s consent PARENT/CHILD: NO Vicarious liability
LOSS OF CONSORTIUM
DEFINE:
Whenever victim of tort is married, uninjured spouse has a separate cause of action for loss of consortium: (1) Loss of services (laundry/mow lawn/cook) (2) Loss of society (companionship) (3) Loss of sex
CO-DEFENDANTS RIGHTS/COMPARATIVE CONTRIBUTION
DEFINE:
Jury assigns numbers; if one D pays it, he is entitled to contribution for the amount he is not responsible for from other D’s; EXCEPTIONS: Contractual agreement; Non-manufacturer can get indemnification in product case