Torts - Details

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(1) D intends to commit a harmful or offensive contact with P's person, and (2) D commits harmful or offensive contract with P's person

Battery

(1) D creates reasonable apprehension in P, (2) of an immediate harmful of offensive contact with P's person

Assault

(1) D commits an act of physical restraint of P, and (2) P is confined to a bounded area

False imprisonment

(1) D engages in extreme and outrageous conduct, and (2) P suffers severe emotional distress

Intentional infliction of emotional distress

(1) D commits an act of physical invasion, and (2) of P's land

Trespass to land

(1) D intends to affect P's chattel, and (2) chattel is damaged

Trespass to chattels

(1) intention by D to exercise dominion or control over P's chattel, and (2) there is complete of substantial interference with P's chattel

Conversion

(1) consent (express and implied), (2) protective privilege (self-defense, defense of others, defense of property), and (3) necessity (public and private)

Defenses to intentional torts

(1) threat from P must be imminent or in-progress, (2) D must have a reasonable belief that threat in genuine, and (3) D must use reasonable force

Intentional tort defense- self-defense

Unreasonable interference by D of P's ability to use and enjoy his property

Nuisance

Vicarious liable tortfeasor is liable to P based on a primary tortfeasor's actions due to the relationship between primary tortfeasor and vicarious liable tortfeasor.

Vicarious liability

Parent is NEVER vicariously liable for torts of child

Vicarious liability- parent/child

Owner is not vicariously liable for torts of driver UNLESS owner has asked the driver to run an errand for the owner's benefit

Vicarious liability- car owner/car driver

Hiring party is not vicariously liable for torts of independent contractor UNLESS (1) independent contractor is hired to perform an inherently dangerous activity, or (2) independent contractor is working on hiring party's premises, then hiring party is vicariously liable for injuries to invitees (customers) on premises

Vicarious liability- hiring party/independent contractor

An employer is vicariously liable for torts of employee, if the tort was committed within the scope of employment (frolic- NO, detour- YES). NOTE: intentional torts are almost never within scope of employment, unless employee's job includes use of force.

Vicarious liability- employer/employee (respondeat superior)

If P sues multiple D's, P can recover all of the judgment against any single D. The D who paid can then be indemnified and received money from other D's.

Joint and several liability

P CANNOT recover any damages from D is P is even 1% at fault

Contributory negligence recovery (minority of jurisdictions)

P's recovery is reduced by the percentage she is at fault (even if more than 50% at fault)

Pure comparative negligence recovery (majority of jurisdictions)

P's recovery is reduced by the percentage she is at fault ONLY IF P is 50% or less at fault (if P is over 50% at fault, P is barred from all recovery)

Partial comparative negligence recovery

(1) duty, (2) breach, (3) causation, (4) damages

Negligence elements

Exercise the same degree of caution as a reasonably prudent person acting under similar circumstances (owed to FORESEEABLE plaintiffs)

Negligence-ordinary duty of care

(1) D has superior skills/knowledge, or (2) D's physical characteristics taken into account

Negligence-ordinary duty of care (exceptions)

(1) kids under 5 owe NO duty, and (2) kids 5 and over owe duty of a hypothetical child of the same age, with the same intelligence and experience, acting under similar circumstances (EXCEPTION: kids is partaking in adult activities)

Negligence- children's duty of care

Professionals owe duty of care as that of an average member of his profession providing similar professional services

Negligence- Professional's duty of care

No duty owed

Negligence- Landowner duty of care- Unknown trespassers

Owe a duty to warn or repair (1) known, (2) artificial/man-made, (3) concealed, (4) highly dangerous/death traps. (Consider attractive nuisance doctrine- anything on land that could attract kids?)

Negligence- Landowner duty of care- known trespassers

Owe a duty to warn or repair (1) known, (2) concealed, (3) man-made OR artificial, (4) unreasonably dangerous conditions

Negligence- Landowner duty of care- licensees

Owe a duty to warn or repair (1) known OR should have known (reasonable inspection), (2) concealed, (3) man-made OR artificial, (4) unreasonably dangerous conditions

Negligence- Landowner duty of care- invitees

Satisfies duty and breach elements of negligence if there is a statute and (1) P is in the class of persons the statute is designed to protect, and (2) P suffered the type of harm the statute of enacted to protect. (EXCEPTIONS: (1) conforming to the statute would have been more dangerous, or (2) D was not in control of himself, conforming to statute was impossible.)

Negligence per se

(1) D has a preexisting relationship with P (ex. employer/employee, parent/child, landowner/invitee), (2) D placed P is a position of peril, or (3) D took on a duty to rescue

Exceptions to NO affirmative duty to act

(1) D failed his duty, (2) P sustained no direct physical trauma, and EITHER (1) P was almost injured by D (P was in the zone of danger AND P suffered emotional stress and subsequent physical manifestations), (2) P was a bystander (P and the victim are closely related AND P saw the victim get injured), or (3) P and D have a business relationship (D carelessly performed duty that is highly likely to cause emotional distress).

Negligent infliction of emotional distress

(1) P is a close relative of victim, (2) P saw the victim get injured, and (3) D knew of the close relationship between P and the victim

Bystander may recover for IIED

When P lacks information of what P did wrong, P can prove duty and breach by showing (1) the accident is the type that would normally be associated with negligence, and (2) D was in exclusive control of the item that caused P's damage.

Doctrine of res ipsa

"But for" D's conduct, P would not have been injured. If multiple defendants: (1) merged cause scenario- 2 negligent acts combine to harm P- if one/both acts contributed to the injury in a substantial way then one/both D's are jointly liable, or (2) unascertainable cause scenario- 2 negligent acts but only ONE actually caused the harm, burden shifts to both D's to prove their act was not the cause, if neither can prove it, both are jointly liable.

Negligence- actual causation

Whether the type of injury was a foreseeable result of D's conduct. Foreseeable scenarios: (1) intervening negligent medical malpractice, (2) intervening negligent rescue, (3) intervening reaction forces (ex. stampede), and (4) subsequent disease or accident to P.

Negligence- proximate causation

A superseding force breaks the chain of causation and relieves D of liability IF the superseding force was unforeseeable and the harm that resulted was also unforeseeable.

Negligence- superseding intervening force

Eggshell plaintiff- you take your plaintiff as you find them

Negligence- damages

(1) domesticated animals (house pets or livestock)- NO liability for animal's actions UNLESS the owner knows an animal has vicious propensities above that expected of the species (EXCEPTION: no liability to trespassers); (2) wild animals- ALWAYS liable for wild animals no matter the safety precautions.

Strict liability- animals

ALWAYS liable for activities that: (1) create a foreseeable risk of serious harm even when reasonable care is exercised; and (2) are uncommon in the community where it is being conducted

Strict liability- abnormally dangerous activities

To prove strict liability for a product defect P must show: (1) D is a merchant; (2) the product is defective- three types manufacturing defect- product differs from all others that came off the line; information defect- inadequate warnings on products with risks that cannot be designed away; design defect- design that a reasonable person would not have put on the market (P must show alternative design that is (1) safer than product marketed, (2) economically feasible, and (3) practical- not difficult to use) (3) product has not been altered since it left D's hands (presumed) (4) P was using the product in a foreseeable manner at time of injury

Strict liability- products

(1) comparative responsibility (2) assumption of risk (product liability) (3) product misuse (product liability) (4) adequate warnings (product liability)

Strict liability defenses

Spouse is injured, the uninjured spouse may claim loss of consortium for: (1) loss of household services (2) loss of society (companionship) (3) loss of sexual intercourse

Loss of consortium

(1) P must show D made a defamatory statement (false statement that adversely affects the reputation of P (NOT mere name calling or opinion) that identifies P; (2) statement is published (shared with one or more people intentionally or negligently) (3) P is damaged- depends on type of defamation libel (written statement)- no damages need to be shown, it's presumed slander per se (spoken statement about (1) P's profession/business, (2) P has committed serious crime- honesty or violence, (3) P, woman, was sexually active while unmarried, or (4) P suffers from loathsome disease- venereal or leprosy)- no damages need to be shown, it's presumed slander (spoken)- P must show economic harm for damages

Defamation

(1) Consent by P (2) Truth (3) Privilege absolute privilege- communications between spouses OR three branches of government (on the senate/house floor or courtroom) qualified privilege- public interest in candor (reference or recommendations are protected if D stays on the relevant subject matter at hand and D has reasonable and good faith basis for making statements) (4) D's statement is a matter of public concern; D is protected unless P can prove: (1) the statement is false; and (2) D made the statement in bad faith (if P is a public figure- P must prove D made the statement knowing it was false OR acted with reckless disregard for the truth; if P is a private figure- P must prove statement was made negligently) (5) Newsworthy matters are always protected

Defamation defenses

D uses P's name or image for a commercial purpose without P's consent (EXCEPTION: newsworthy material)

Invasion of privacy- appropriation

P's seclusion (area P has reasonable expectation of privacy) is invaded in a way that would be highly offensive to a reasonable person

Invasion of privacy- intrusion

Widespread dissemination of material falsehoods about P that would be highly offensive to a reasonable person

Invasion of privacy- false light

Widespread dissemination of confidential information about P that would be highly offensive to a reasonable person

Invasion of privacy- disclosure

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