Critical Pass - Torts
Intentional Torts
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- Act by D—requires some volitional movement
- Intent—specific or general
- Specific—intent to bring about a specific harm
- General—substantial certainty that tortious conduct will result from D’s act
- Causation—substantial factor
- D’s conduct must be a substantial factor in bringing about the resulting harm
Transferred intent doctrine—arises when D acts with the intent to commit a given tort but:
- commits original tort against a different person than intended
- commits a different tort than intended against original person
- commits different tort against different person than intended
- D’s original intent transfers to the tort actually committed and/or person actually harmed, resulting in D’s liability
- Applies only to: assault, battery, false imprisonment, trespass
Damages—compensatory (i.e., monetary) damages
- Punitive damages are available for torts committed with malice
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An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person, or something closely attached to P’s person (e.g., hat, cane)
- Also considered an attempted battery
Elements:
- Act by D that creates a reasonable apprehension in P
- “Reasonable apprehension” = P has awareness of D’s act and has a reasonable expectation that it will result in immediate harmful or offensive contact to P’s person
- Note—beware of fact patterns where D appears incapable of accomplishing the threatened harm
- Apparent ability is sufficient, as long as it could reasonably create P’s apprehension
- Of immediate harmful or offensive contact to P’s person
- P must apprehend an immediate or imminent battery
- Words or threats are usually insufficient, unless coupled with some overt act (e.g., picking up a weapon, clenching fists, etc.)
- Similarly, threats of future battery are insufficient
- P must apprehend an immediate or imminent battery
- Intent
- Causation
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An intentional harmful or offensive contact to P’s person by D
Elements:
- Harmful or offensive contact by D
Harmful contact is contact that causes pain, injury, etc.
Contact is offensive if it would be considered offensive by a reasonable person and P has not consented
- To P’s person
- Includes anything connected to P’s person (e.g., P’s hat)
- Intent
- Causation
- Indirect contact is sufficient — i.e., causing the force that gives rise to harmful or offensive contact
- E.g., greasing a floor so that P will slip and fall
- Indirect contact is sufficient — i.e., causing the force that gives rise to harmful or offensive contact
An intentional act by D resulting in P’s restraint or confinement to a bounded area
Elements:
- Act (or omission) resulting in P’s restraint or confinement
- Restraint or confinement does not have to be physical
- I.e., threats of force, invalid use of legal authority
- Duration is not important; brief confinement will suffice
- P is confined to a bounded area
- P must be aware of or harmed by the confinement
- P’s freedom of movement must be limited
- P must not be aware of any reasonable means of escape
- If a reasonable person could get out (e.g., by opening an unlocked door), no false imprisonment
- Intent
- Causation
Shopkeeper’s privilege — a store may detain a suspected thief if:
- Store has reasonable cause to believe a theft occurred;
- Store detains suspect in a reasonable manner (only non-deadly force is permitted) for purposes of investigation; and
- Detention is reasonable in length and scope
- Shopkeeper may be held liable for any harm caused by acts exceeding the privilege
Extreme and outrageous conduct by D causing P’s severe emotional distress
Elements:
- Extreme and outrageous conduct by D
- Conduct that exceeds the bounds of decency in society
- Mere insults alone are insufficient
- Conduct must be outrageous to a reasonable person unless:
- D targets P’s known sensitivity or weakness,
- D’s conduct is continuous or repetitive,
- D targets a P who is a member of a “fragile” class (e.g., elderly, children, pregnant women), or
- D is a common carrier or innkeeper
- Conduct that exceeds the bounds of decency in society
- Severe emotional distress in P
- P must suffer severe emotional distress from D’s conduct
- Physical symptoms are not necessary
- Note — watch for facts indicating extreme, outrageous conduct but P does not suffer severe emotional harm — this is not IIED
- P must suffer severe emotional distress from D’s conduct
- Intent or recklessness
- Recklessness = D disregards the likely consequences of his acts
- Causation
See Cards 6 & 33 - IIED: Bystander Claims for Emotional Distress; Negligent Infliction of Emotional Distress (NIED)
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When D’s conduct is directed at a third person and P (the bystander) suffers severe emotional distress, P must prove the same IIED elements (see Card 5) with additional intent and causation requirements
Elements:
- Extreme and outrageous conduct by D
- Severe emotional distress in P
- Intent or recklessness
- Causation
Additional requirements:
- P was present at the time;
- P was a close relative of TP, or distress resulted in bodily harm; and
- D knew these facts
Note—P does not need to establish additional requirements if P proves D had a design or purpose to cause severe distress to P
A physical invasion of P’s real property by D
Elements:
- Physical invasion of P’s real property by D
- D enters P’s property or propels an object onto it
- E.g., D walks on P’s property, throws a ball onto P’s property, chases someone onto P’s property
- D enters P’s property or propels an object onto it
- P need only have lawful possession of the property — ownership not required
- Must be a physical invasion
- Invasions by light, sound, smell are not trespass (but may give rise to nuisance — see card 42)
- Must be a physical invasion
- P’s real property includes surface space, airspace, and subterranean space to a reasonable distance
- Intent
- Intent to enter the land will suffice, even by reasonable mistake
- D does not need to know the land belongs to another
- Causation
Note — actual damages not required; compare to trespass to chattel and conversion (see card 8)
Two separate but similar torts; the difference is the level of interference with P’s property and the damages P can recover
Elements:
- D interferes with P’s right of possession in tangible personal property (chattel)
- Interference usually occurs through dispossession (depriving P of his possessory rights in chattel) or damaging P’s chattel
- Trespass — minor interference or damage
- Conversion — significant interference or damage that justifies D paying the chattel’s full value
- A longer and/or more damaging use of P’s chattel gives rise to conversion
- Conversion — significant interference or damage that justifies D paying the chattel’s full value
- Intent
- Causation
- Damages — P must have some loss of use
- Trespass — P can recover cost of repair or rental value of chattel
- Conversion — P can recover full market value at the time of conversion or repossess the chattel (replevin)
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Defenses to Intentional Torts
A defense to all intentional torts—if P consents to D’s otherwise tortious conduct, D is not liable for that act
- Capacity required—P must be capable of consenting
- I.e., drunks, mentally impaired, and young children are incapable of consenting to tortious conduct
Express consent—P gives D verbal or written consent
- Nullified by duress, fraud, or mistake
Implied consent—D can reasonably infer P’s consent based on custom or P’s observable conduct
- Often arises if P participates in an activity or goes to a place where torts are common
- E.g., if P plays tackle football, P has given implied consent to certain forms of battery
- Consent is usually implied for ordinary contacts of daily life (e.g., brushing against someone on crowded sidewalk or public transportation)
- Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent
Scope of consent—D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)
Requirements for all defenses:
- Reasonable belief—D must reasonably believe a tort is being or about to be committed
- Proper timing—tort must be in progress or imminent
- Reasonable force—must be proportionate to threat of harm
- Deadly force—allowed if D reasonably believes a life is in danger (never permitted to protect property alone)
Self-defense
- No duty to retreat (except a minority of jurisdictions impose a duty to retreat before using deadly force if retreat can be done safely)
- Only available to initial aggressor if initial threat has terminated or D responds to non-deadly force with deadly force
Defense of others—D must have reasonable belief that the person he is aiding would have the right of self-defense
- D may use as much force as he could have used if the injury was threatened to him (i.e., if he was acting in self-defense)
Defense of property—available to prevent tort against property
- Reasonable force may be used, but force that is deadly or causes serious bodily harm is not allowed for defense of property alone
- Unavailable if initial actor had a privilege to enter land (e.g., recapturing chattel)
- Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed
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A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger
Requirements:
- D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
- Threatened injury must be more serious than the interference undertaken to avert it
Public necessity—absolute defense
- D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people
- Absolute defense—P cannot recover any damages
Private necessity—limited defense
- D invades P’s property to protect his own property or self or small group
- Limited defense—P can only recover damages for actual harm to D’s property, unless D trespassed for P’s benefit
Property owner liability—if an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity (e.g., P seeks shelter from terrible storm), owner will be liable for any damage caused
D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable, non-deadly force if in fresh pursuit of the chattel-taker
- Also a defense to assault and battery and false imprisonment
Limitations & requirements:
- D-owner must make a timely demand for return of chattel
- Exception—not required if making demand would be futile or dangerous
- D-owner may recapture from original wrongdoer or a third person who knows the chattel was wrongfully obtained
- Recapture is not available if chattel is in the hands of an innocent party
- Use of force—reasonable force may be used to recapture chattel only if in fresh pursuit of one who has wrongfully obtained possession
- No deadly force or serious bodily harm permitted
Defamation
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A false statement concerning P, made by D to at least one person other than P, that is harmful to P’s reputation
- Falsity and fault are always required for defamation
Common Law Elements:
- A false (constitutional rules impact whether P has burden to prove falsity or D has burden to prove truth)
- Defamatory statement—adversely affects P’s reputation
- Must be based on specific facts
- Concerning P—must be reasonably understood that the statement concerns a living P or a very small group of Ps
- Publication—statement must be intentionally or negligently made to a third person
- Harmful to P’s reputation
- See Card 14—Defamation: Constitutional Considerations
Liability for republication—the republisher of a defamatory statement is liable to the same extent as the original publisher
- Note—Internet service providers (ISPs) are not liable for statements made by others posted on their platforms pursuant to federal statute
Damages—P’s burden of proving damages relies on the type of plaintiff, if statement is a matter of public concern, or if it is slander per se
- See Card 15—Defamation: Damages Considerations
- Truth is a complete defense
- No requirement at common law for P to prove fault
1st Amend. considerations arise when defamation involves a public figure, public official, and/or a matter of public concern
Public figures, public officials
- Public figure = one who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter
- Public official = public office holder
Additional elements
- Fault—P must prove D was at fault
- Standards differ for public vs. private figures:
- Public official or figure—actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
- Private figure—negligence standard
- Standards differ for public vs. private figures:
- Falsity
- Public officials and public figures must prove falsity
- Private figures must prove falsity only if speech pertains to matter of public concern
- If private figure/private speech, states may require D to prove truth
Damages depend on the type of plaintiff, content, and whether the defamatory statement constitutes libel, slander, or slander per se
Libel—a written defamatory statement
- Public figures and public officials who prove “actual malice” may recover “presumed damages” for reputational harm without any proof
- Private figures who prove negligence may recover “presumed damages” only if the speech relates to a matter of private concern
- If public concern, private figures may recover only proved actual damages
- Note—TV and radio broadcasts are considered libel
Slander—a spoken defamatory statement
- P must prove “special damages” unless the statement constitutes slander per se
- Special damages—a specific economic loss
- Slander per se—a defamatory statement that either:
- Adversely reflects on P’s business or professional reputation,
- Claims that P has a loathsome disease,
- Claims that P committed a crime of moral turpitude, or
- Imputes P's chastity
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Consent, truth, and privilege may be valid defenses to defamation
Consent — P consents to one or more required elements
- E.g., P may consent to an organization investigating her and sharing its findings with potential employers
Truth — allegedly defamatory statement is true
- Truth is a complete defense to a defamation claim
Privilege — certain types of statements are privileged
- Absolute privilege — protects statements by govt. officials in their official capacity
- Qualified privilege — D’s liability for defamatory statements is limited where:
D invites the statement and/or recipient has an interest — e.g., employment reference, credit report, letter of recommendation
Statement is in the public interest — e.g., book reviews, statement to a parole board
Invasion of Privacy
Appropriation — unauthorized use of P’s name or likeness for commercial purposes (e.g., promotion or advertisement) without P’s consent
- Newsworthiness exception — no liability for use of P’s name or likeness for the purpose of reporting news
False light — widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person
- Includes mischaracterization of P’s views or conduct
- Matters of public concern — D must have actual malice or reckless disregard for the truth of the matter publicized
- Note — this is the same as the constitutional considerations for defamation (see card 14)
- No newsworthiness exception
Defenses:
- Consent — valid defense, although D may be liable if his actions exceed the consent given
- Mistake as to if consent was given is not a valid defense
- Privilege — may be available as a defense to false light if D has an absolute or qualified privilege to publication (see card 16)
- Truth is not a valid defense to invasion of privacy claims
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Intrusion upon seclusion — intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person
- Requirements:
- P must have a reasonable expectation of privacy
- No reasonable expectation of privacy in public
- Intrusion must be highly offensive to a reasonable person — e.g., peeping, eavesdropping, or using hidden cameras in P’s domain
- P must have a reasonable expectation of privacy
- No newsworthiness exception
Disclosure — public disclosure of P’s private information
- Requirements — disclosure must be:
- Highly offensive to a reasonable person
- Public activities are not objectionable
- E.g., D announces that the mayor frequents strip clubs — no liability b/c the acts occur in public
- Publicized — made available to a public audience
- Highly offensive to a reasonable person
- Newsworthiness exception — no liability if private facts are newsworthy
Defenses — consent is a valid defense; privilege is a valid defense to disclosure (see card 16)
Other Torts
Malicious prosecution — D initiates a frivolous charge or claim against P with an improper purpose (e.g., filing a false police report)
- Elements:
- D commenced a prior criminal or civil legal proceeding against P
- Note — prosecutors are immune
- Prior proceeding terminated in P’s favor
- No probable cause for the original proceeding
- I.e., D knew P was not guilty (criminal) or liable (civil) or had insufficient facts to reasonably believe in P’s guilt or fault
- D had an improper purpose in initiating the proceeding
- Damages
- D commenced a prior criminal or civil legal proceeding against P
Abuse of process — D uses the legal system as an ulterior purpose to threaten or act against P
- Elements:
- Wrongful use of process for an ulterior purpose
- Definite act or threat against P to accomplish an ulterior purpose
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Intentional misrepresentation (fraud, deceit)
- Elements:
- D misrepresents a past or present material fact
- D knows or believes the misrepresentation is false
- D intends to induce P to act or refrain from acting in reliance on the misrepresentation
- Actual reliance by P (causation)
- P must actually rely on the misrepresentation
- Justifiable reliance by P
- P must be justified in relying on the misrepresentation
- Damages — P must suffer monetary loss
Negligent misrepresentation
- Elements:
- D misrepresents a past or present material fact in a business or professional setting
- Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
- Actual and justifiable reliance by P
- Damages — P must suffer monetary loss
Arises when a third party interferes with an existing contract
- Also referred to as “tortious interference with contract”
Elements:
- P has a valid contractual relationship or business expectancy
- Includes contracts between P and a third party
- D has knowledge of the relationship or expectancy
- D intentionally interferes with that relationship
- Must be intentional — negligence is insufficient
- D’s interference causes a breach or termination in P’s contract or expectancy
- Damages
Privilege defenses
- D’s conduct may be privileged when it is a proper attempt to obtain business or protect his interests
- E.g., competing for P’s customers
Negligence
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Negligence basics
- Negligence is analyzed under an objective standard by comparing D’s actions to a reasonable person under the same or similar circumstances
Elements:
- Duty of care
- D has a duty to conform to a specific standard of care
- Reasonably prudent person — D’s duty is to behave like a reasonably prudent person under the circumstances presented
- Exception — in certain situations, an alternative standard of care applies (see cards 24-27)
- Breach of duty — see card 23
- Causation
- Actual cause and proximate cause (see cards 29-30)
- Note — the MBE may refer to actual cause as “cause-in-fact” or “factual cause,” and proximate cause as “legal cause”
- Damages — see card 31
D owes a duty of care—to behave like a reasonably prudent person under the circumstances—to all foreseeable plaintiffs
Default standard of care — reasonably prudent person (RPP)
- D’s duty is to behave like an ordinary, reasonably prudent person under the circumstances with regard to foreseeable plaintiffs
- RPP is considered to be someone with D’s physical characteristics (including disabilities such as blindness), but with the knowledge and mental capacity of an ordinary person
Foreseeable plaintiffs — those within the zone of danger
- Zone of danger = the area around D’s activities in which a P could foreseeably be injured
- Rescuer’s exception — if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
- Does not apply to emergency personnel (e.g., firefighters or police) if their injury results from a risk inherent to the job
- Prenatal injury — a duty of care is owed to a viable fetus
Children—held to the standard of care of a reasonable child of similar age, education, intelligence, and experience
- Generally, young children (i.e., under 5) lack capacity to be held negligent
- Adult activities exception—children engaged in adult activities must conform to an adult standard of care in that activity
Common carriers & innkeepers—held to an “utmost care” standard
- Liable for even slight negligence to passengers or guests
Custom or usage in an industry—can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty, nor does compliance with an industry custom automatically establish a lack of negligence
Professionals—must act with the knowledge and skill of a member of their profession in good standing in similar communities
- Medical professionals—held to national standard of care
Statutory standard of care—see Card 25
Owners/occupiers of land—see Cards 26–27
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Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers
- Same standard of care applies for owners and occupiers
Unknown or undiscovered trespassers — no duty owed
Anticipated trespassers — where owner has reason to believe of trespassers on her land
- Activities — owner has duty of reasonable care in carrying out activities on her property
- Dangerous conditions — owner has duty to make safe or warn of any known, concealed, man-made hazards
- Note — this is rare; look for spring guns, traps, etc.
Attractive nuisance doctrine for child trespassers
- Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:
- She is aware or should be aware of a dangerous condition on her property;
- She knows or should know children are in the vicinity;
The condition is likely to cause injury given a child’s inability to appreciate the risk; and
- The magnitude of the risk outweighs its utility or the expense of remedying it
Licensee — one who enters land with owner’s permission for his own purpose or business (i.e., not for landowner’s benefit)
- E.g., relatives, friends, social guests
Invitee — one who enters land held open to the public or who enters with owner’s permission to confer a commercial benefit
- E.g., store patron, concert-goer
Duty of care owed:
- Activities carried out on property — reasonable care
- Known dangerous conditions — duty to warn or make safe
- Duty to inspect — n/a for licensees
- Invitees — owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe
May be non-delegable — businesses that hold property open to the public have a non-delegable duty to keep premises safe for customers
Scope of duty — limited by scope of the invitation/license
- Owner’s duty extends only to those areas where one is an invitee or licensee (e.g., store owner does not owe duty of care in employees-only area)
Note — police and firefighters are considered licensees, but cannot recover for injuries suffered in the line of duty if the injury results from a risk inherent in the job (see card 23)
D breaches his duty when his conduct falls short of the standard of care owed under the circumstances
To demonstrate a breach, P can argue:
- D breached the applicable standard of care — includes:
- RPP standard
- Negligence per se — violation of a relevant statute (see card 25)
- Specialized standard of care
- Custom or usage in an industry — not an automatic breach, but may be relevant
- Res ipsa loquitur — the very occurrence of the accident causing P’s injuries suggests negligent conduct
- Arises if facts cannot establish breach of duty b/c circumstances surrounding the event are unknown to P
- Requirements — P must show:
- Inference of negligence — the harm would not normally occur absent negligence
- Attributable to D — this type of harm normally results from negligence by one in D’s position
- Often satisfied by showing that the injury-causing instrument was in D’s exclusive control
- Injury was not attributable to P
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Establishes a causal connection between the alleged breach of duty and the resulting injury
“But-for” test — but for D’s alleged breach of duty, P’s injury would not have occurred
Substantial factor test — for multiple causes of P’s injury
- D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury
- Application — used if multiple causes bring about P’s injury and any one of them alone would have caused the injury
- E.g., fires negligently start on D1’s land and D2’s land, each of which spreads to P’s land and destroys P’s house
Burden-shifting test — for several possible causes of P’s injury
- Application — used if multiple Ds act (often simultaneously), only one causes P’s injury, but it’s unclear which D caused the injury
- E.g., P is hit by a stray bullet at a busy firing range and it’s unknown which shooter hit P
- Burden of proving actual cause shifts to Ds
- If no D can prove another D was responsible, all Ds are jointly and severally liable
Note — MBE may refer to actual cause as factual cause or “cause-in-fact”
Establishes that it is fair under the law to hold D responsible for P’s injuries
Foreseeability — measuring stick for proximate cause
- D is liable for the foreseeable outcome of his conduct
- Note — an outcome does not have to be likely to be foreseeable; unlikely things are often foreseeable on the MBE; if it’s reasonably possible, it’s probably foreseeable (for direct and indirect causes)
Direct causes — if P’s injury is the direct result of D’s negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable
Indirect causes — intervening forces that occur after D’s conduct to cause P’s injuries will not cut off D’s liability if they are foreseeable
An intervening force is usually foreseeable if either:
It is a normal response or reaction to D’s negligent act, or
D’s negligence increased the risk that an intervening force would cause harm to P
Injuries to rescuers are usually considered foreseeable
“Eggshell Plaintiff Rule” — D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable
Note — proximate cause (i.e., foreseeability) is a question of fact that is usually left to a jury or fact-finder
P must prove damages, which are not presumed in negligence cases; nominal damages are not available
Types of damages:
- Personal injury — D must compensate P for all damages
- Includes past, present, and prospective damages
- Economic and non-economic damages are recoverable
- Property damage — P can recover reasonable cost of repair
- If property is irreparable, damages = full market value at the time the accident occurred
- Punitive damages — only recoverable if D’s conduct is wanton and willful, reckless, or malicious
Usually not available in negligence cases; more common with intentional torts
Non-recoverable damages — P can never recover for:
- Interest from the date of damage in personal injury cases
- Attorneys’ fees
Duty to mitigate — P must take reasonable steps to mitigate damages
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Comparative negligence—D can establish that P’s injuries are at least partially the result of P’s own negligence
- Fact-finder apportions fault between P and D by percentage and reduces P’s recoverable damages accordingly
- Partial/modified comparative negligence—P can only recover damages if he was less than 50% at fault (or 50% or less in some states, and over 50% can make claim inactionable)
- Pure comparative negligence—P can recover damages even if he was more than 50% at fault
Contributory negligence—P is barred from recovery if D establishes that P’s negligence contributed to her injuries
- Last clear chance defense—P can rebut D’s contributory negligence claim by proving D had the last clear chance to avoid the injury-causing accident
Assumption of risk—D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act
- Requirements—D must show:
- P knew of the risk (subjective standard; but knowledge can be inferred from facts); and
- P voluntarily proceeded in the face of that risk
- Express assumption—P can assume risk by agreement (e.g., exculpatory clause); less likely to be enforced if part of adhesion K
Note—MBE questions usually note which of the above defenses applies; none of these are defenses to intentional torts, but P can consent to intentional torts
P may recover for emotional distress resulting from D’s negligence
Elements:
- D’s negligence results in a close risk of bodily harm to P
- P must be in “zone of danger” to recover
- I.e., D’s act must have nearly caused physical harm to P
- D’s negligence results in P’s severe emotional distress
- P exhibits some physical manifestation attributable to her emotional distress
- Symptoms can be instantaneous or appear days later
- Non-physical symptoms — states are split on this element; many allow severe emotional distress alone
- Note — on essays, note the distinction; given the split, an MBE question is unlikely to turn on this element
Bystander claims — P-bystanders outside the zone of danger may recover for emotional distress resulting from D’s negligence if:
- P and the injured person are closely related;
- P was present at the scene of the injury; and
- P personally observed or perceived the event
Special situations — if above elements are not met, P may still recover where D’s negligence creates a great likelihood of emotional distress
E.g., erroneous report of relative’s death, mishandling of corpse
Strict Liability
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Under strict liability, D can be liable without fault
- Allows P to establish D’s liability for P’s injuries without proving D acted negligently
Strict liability is limited to cases involving:
- Ultrahazardous and/or abnormally dangerous conditions (see card 35)
- Animal conduct (see card 36)
- Products liability (see card 37)
Prima facie case:
- Nature of D’s activity imposes absolute duty to make safe
- Causation — actual and proximate cause
- Dangerous aspect of D’s activity caused P’s injury
D generally liable only to foreseeable Ps
- Damages to P’s person or property
Note — no amount of due care will relieve D of liability under strict liability
Defenses — assumption of risk, comparative negligence
Abnormally dangerous or ultrahazardous activities or conditions give rise to strict liability for any resulting injuries
Requirements — abnormally dangerous activity/condition exists if:
- Severe risk — condition or activity imposes a severe risk of harm to persons or property
- Cannot be made safe — it cannot be made reasonably safe
- Cannot be performed without a serious risk of harm even when all actors use reasonable care
- Uncommon — condition or activity is uncommon in the community
- Note — often arises on the MBE with explosive, toxic, and/or biohazardous materials
Injury must result from the abnormally dangerous activity
- Watch for fact patterns where abnormally dangerous conditions exist, but do not cause P’s injury
- E.g., truck carrying toxic waste in sealed containers, which fall and crash into P’s car but do not spill
- No strict liability b/c the abnormally dangerous nature of the containers did not cause P’s injury
- E.g., truck carrying toxic waste in sealed containers, which fall and crash into P’s car but do not spill
See Card 34 - Strict Liability: Prima Facie Case
Property damage from trespassing animals
- Animal owners are strictly liable for reasonably foreseeable damage resulting from their animal’s trespass on another’s property
- Does not apply to household pets
Personal injuries
- Wild animals — owners are strictly liable to licensees and invitees for unprovoked injuries caused by their wild animals
- Domestic animals — no strict liability unless owners know of their animal’s unusually dangerous propensities
- E.g., if a dog has previously bitten people, its owner is strictly liable; but the negligence standard applies if this is the first time this dog has bitten anyone
- Trespassers cannot recover — trespassers are generally not entitled to recovery under strict liability
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Products Liability
Elements:
- D is a commercial supplier
- Suppliers have a strict duty to supply safe goods
- Commercial supplier = one who routinely deals in the product sold, including any merchant in the stream of commerce
- E.g., manufacturer, distributor, supplier
- Casual sellers, service providers are not suppliers
- Product is defective
- Defect must make product unreasonably dangerous
- See Card 38 - Types of Product Defects
- Defective product was actual and proximate cause of P’s injury
- Product must not be substantially altered between leaving commercial supplier and reaching consumer
- P used the product in a foreseeable manner
- P’s misuse of the product can be foreseeable
Who can sue — foreseeable users or bystanders
- E.g., buyers as well as their guests, employees, family, etc.
Damages — P can recover for physical injury or property damage, but not solely for economic losses
Manufacturing defect—product departs from its intended design, causing it to be more dangerous than all of the manufacturer’s other products of same kind
- Requirements—P must show that the product failed to perform as safely as an ordinary consumer would expect
Design defect—product creates an unreasonable risk of danger due to its faulty design
- Requirements—P must show a technologically and economically feasible alternative design or modification that would be safer as to the risk at issue
Inadequate warning—manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use
- Includes duty to warn of foreseeable dangers from misuse
- Requirements—P must show that the product failed to have clear and complete warnings of any dangers that would not have been ordinarily apparent to consumers
- Unavoidably unsafe products—if a product cannot be made safe for its ordinary use (e.g., chain saw, firearms), manufacturer must give:
- Proper instructions for use; and
- Adequate warnings of known dangers
- D is not liable for risks that were unforeseeable at the time the product was marketed
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P may establish liability for a product defect under a negligence theory
- Note — a product defect is almost always easier to establish under a strict liability theory
Elements:
- Duty of care — each commercial supplier in the stream of commerce owes a duty to all foreseeable product users and bystanders
- Breach of duty — D’s negligence leads to the supplying of a defective product
- Retailers and wholesalers satisfy due care by a cursory inspection of the product (this makes it difficult to hold them negligent for product defects)
- Causation — P must show actual and proximate cause
- Note — an intermediary’s negligent failure to discover a defect does not absolve the upstream commercial supplier of liability
- Damages — P must show physical injury or property damage
- Economic loss alone is not recoverable
Defenses — all standard negligence defenses are available
Implied warranties
- Merchantability — seller warrants that goods are reasonably fit for their ordinary purpose
- Fitness for particular purpose — if seller a) knows or has reason to know the particular purpose for which buyer is purchasing, and b) knows that buyer is relying on seller’s skills or judgment to select or furnish suitable goods
- E.g., a shoe store salesperson helping a buyer find ideal running shoes for running on trails
Who can sue — implied warranty protection extends to a buyer’s family, household, and guests who suffer personal injury
Elements:
- Warranty — existence of an implied warranty
- Breach — product fails to live up to applicable warranty
- Causation — actual and proximate
- Damages — personal, property, and economic are all recoverable
Defenses — assumption of risk, contributory and comparative negligence
D may be liable if a product falls short of an affirmative representation made to buyer
Express warranty — a statement of fact or promise regarding goods sold that becomes part of the basis of the bargain
- Any consumer or bystander can sue for breach
- Bystanders need not have relied on the express warranty, as long as the original purchaser did
- Elements — same as for implied warranties:
- Express warranty — relied upon by purchaser
- Breach — product fails to live up to the warranty
- Causation — actual and proximate
- Damages — personal, property, and economic loss
- Defenses — assumption of risk, contributory and comparative negligence
Misrepresentation of fact — seller will be liable for any misrepresentation made in the course of a sale if:
- Seller made a misrepresentation regarding a material fact concerning the quality or use of the goods;
- Seller intended to induce reliance by buyer; and
- The misrepresentation induced justifiable reliance
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Nuisance
An intentional invasion of either public or private property rights that substantially and unreasonably interferes with the peaceful and quiet enjoyment of these rights
- Note—nuisance is a harm caused by tort, not a tort itself
Private nuisance—a substantial, unreasonable interference with another individual’s use or enjoyment of her property
- Substantial interference—must be offensive, annoying, or inconvenient to the average person in the community
- Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose
- Unreasonable interference—severity of P’s injury must outweigh the utility of D’s conduct
- Note—an interference can be substantial, but not unreasonable (e.g., trains pass through center of city and are required by safety regulations to blow their horns at crossings)
Public nuisance—unreasonable interference with health, safety, or property rights of the community at large
- Recovery is only available to a private party if she suffered unique damage not suffered by the public at large
- Govt. usually brings public nuisance suits
Potential remedies—money damages, injunctive relief
Coming to the Nuisance
- P can generally “come to a nuisance” (buying land next to an already existing nuisance) and pursue an action as long as P did not come to the nuisance for the sole purpose of bringing a lawsuit
Liability Issues
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Arises when D commits a tort against P and a third person is held liable due to his relationship with D
Respondeat superior — employers are liable for torts committed by employees within the scope of their employment
- Intentional torts — usually outside the scope, unless:
- The job requires use of force (e.g., bouncer),
- The job entails creating friction (e.g., bail bondsman), or
- The intentional tort is done to further the employer’s goals (e.g., physically breaking up a fight in a store)
Independent contractors — employers are generally not liable for torts committed by independent contractors, except for acts that are inherently dangerous or duties that are non-delegable
Businesses that hold property open to the public have a non-delegable duty to keep premises safe for customers
Partnership — each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership
Parent-child — parents are not liable for their children’s torts
- But parents may be separately negligent if they had reason to know of a child’s propensity to injure or they facilitated the tort
Tavernkeepers — businesses serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron, usually depending on wording of state's "dram-shop" statute
Joint and several liability—arises if the acts of two or more Ds combine to produce a single indivisible injury
- Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P’s injury
- Note—most states have replaced traditional joint and several liability with apportionment of damages among multiple defendants by percentages of fault
- Ds acting in concert—if two or more Ds act in concert and injure P, each is joint and severally liable for P’s entire injury
- Applies even if injury and Ds’ culpability is divisible
- Satisfaction—if P recovers fully from one D, she may not recover more from a jointly liable D
Contribution—D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid
- Not applicable to intentional tort liability
- Contribution is usually imposed in proportion to relative fault
Indemnity—involves shifting the entire loss between or amongst Ds
- Available by contract, in vicarious liability situations, or under strict products liability
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