california bar exam outline - torts
California Bar Exam Outline - TortsIntroduction
This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
- PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
- BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
- PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
- PMBR Multistate Workbook Volume 1 MBE answers
- PMBR Multistate Flashcards
- Strategies and Tactics for the MBE, by Emanuel
- PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
- Exam approach
- Identify the theory involved in the Q, in this order of priority: Intentional, strict liability, or negligence (default, unless grounds for anything higher).
- Look to the parties and ask, "Is there anything special about either party�s status, or the relationship between the parties, which impacts on the theory picked in step 1?"
- Eliminate any alternative which speaks to the wrong theory.
- Choose the best definitional answer of the tort or cruitial element involved.
- Intentional tort: Answer which speaks to the intentional conduct of D . Reasonableness of conduct is irrelevant.
- Strict liability: Animals or ultrahazardous activity answer speaks to engaging of the activity; products liability answer speaks to product defect.
- Negligence: Answer speaks to reasonableness of D conduct.
- Intentional torts have act + intent + harm + defenses.
- Property damage: Evaluate diminution of value and cost of repair.
- Punitive damages available only for malice.
- Intentional torts (BAF IT TC)
- Prima facie case
- Volitional act by D
- Intent: Actor consciously desires to cause consequences of act (i.e. entering land), knowing that the result will occur (specific intent), or knows that the result is substantially likely to occur (general intent).
- Transferred: D intends tortuous conduct against one party but resulting harm is caused upon another; or D intends to cause one intentional tort but ends up causing another. Only applies to assault, battery, false imprisonment, trespass to land or chattels.
- No incapacity: Minors and incompetents are held liable for intentional torts despite lacking knowledge of wrongfulness or foreseeability of consequences. Parents liable for child�s intentional torts.
- Mens rea is a term that only applies to crim law � not torts.
CausationHarms to the person
Volitional act intending to cause an unreasonably harmful or offensive touching with a person or an imminent apprehension of such contact; and an offensive or harmful contact results, even if unknown to p .
- D didn�t need to have a substantial certainty that the offensive contact would occur.
- Does not include unintentional (accidental) contact.
Covers the person of p and anything touching the person (such as clothing, something grasped in the hand, car, horse, chair). Lack of informed consent for medical procedures is negligent malpractice, not battery. If the conduct was extreme and outrageous, not merely offensive, use Intentional Infliction of Mental Distress. Exception: Conduct was customary and reasonably necessary, or socially acceptable under the circumstances. Example: Subway train lurches and people bump into each other; tapping someone on the shoulder to get their attention.Assault
D voluntarily acts intending to cause an imminent harmful or offensive contact with another person, or an imminent apprehension of such contact; and the other is put in imminent reasonable apprehension of immediate harmful or offensive contact (a battery). Inability of D to injure p is not relevant. Apprehension is awareness, not fear. Assault followed by battery merges into battery. Battery followed by assault is two separate torts. Lack of awareness of assault may be an attempted battery. Words alone aren�t sufficient, but words + minor act is. Words may negate the apprehension, by making a threat of future action.False imprisonment
D voluntarily intends to confine p within certain fixed boundaries, and does in fact cause such confinement by force, threats of force, unlawful arrest, or refusal to comply with legal duty. p could not reasonably escape. Reasonable means of escape does not include having to leave property, dangerous means of escape, or unreasonably embarrassing means of escape. Confinement doesn�t have to be physical: i.e. keeping a purse or wallet "hostage" if person was reluctant to leave personal items in the hands of a stranger. Harm: p must be aware of or harmed by the confinement, regardless of how brief. Children and mentally retarded people may be falsely imprisoned even if they don�t know it, and even if no harm resulted. Defenses: Lawful arrest, and shopkeeper�s privilege. Shopkeeper can detain suspected shoplifter if reasonable grounds to believe theft has occurred; detention conducted in reasonable manner; and detention for reasonable period of time to make investigation (conservative � 30 min has been held to be too long.). Shopkeeper liable for actual injuries.Infliction of mental distress
D acts in an extreme and outrageous manner, considering the circumstances, intended to cause p to suffer severe emotional distress (suffering, anguish, fright, horror, grief, shame, humiliation, embarrassment, worry), and p actually does suffer severe emotional distress.
- Actual damages must be proven, but physical injury need not result (court presumes damage when conduct was extreme and outrageous).
Lessened requirement of outrageous conduct applies to common carriers and innkeepers, allowing recovery based on insulting or highly offensive behavior (same with p �s who are elderly, children, pregnant, and hypersensitive if p knows). Negligent infliction
Duty of care not to subject others to emotional distress which could foreseeably cause them physical injury. p who witnesses harm to TP can claim negligent infliction if D is aware or should be aware of TP�s presence;[ is aware of relationship between p and TP;???] and they suffer bodily injury (physical manifestation of distress), or are a close family member. Note this is NIED, not IIED, which would apply only if D intentionally staged the trauma intending to cause TP distress. Example: Finding a mouse in your unopened milk bottle. No recovery without physical manifestation.Harms to property interests
- Trespass to land
Volitional act (intentional, reckless or negligent) which results in an invasion of land and which invades p �s right to use and enjoy her land. Entering (above, on or below) the land to another, causing a thing or TP to do so (including gas or microscopic particles), or remaining on the land. Damages
- Intentional trespass: Nominal damages, even if no harm; strict liability for damages.
- Negligent or reckless trespass: Recovery only for actual damages.
- Non-negligent trespass (sleepwalking, car accident): No recovery, even if damage occurs.
Aircraft aren�t trespassing unless they are in the immediate reaches next to land, and interfereing substantially with the use and enjoyment of land. Repeated low-level flying is nuisance, not trespass.Trespass to chattels
Volitional act resulting in trespass which interferes with p �s use and enjoyment of his personal property (damage or denying possession). Liability is for diminished value, reasonable rental value, loss of use, or cost of repair. Actual damages required.Conversion
Volitional act intending to assert rights of ownership over chattel which in fact belongs to p . Harm must be a substantial interference with p �s right to use and enjoy his chattel. Harm is measured by extent, duration, and damage to dominion. Similar to trespass to chattels, but triggered when D exercises more severe degree of control. Liability for full value of chattel at time of conversion because forced sale is required (unless p elects replevin � return of item). Triggered when D no longer wants his property back due to amount of damage. Gives p option of saying "you break it, you buy it."Defenses (privilege)
- Protection of self and others with reasonable force necessary to protect himself or others from imminent bodily harm.
- Defender must not be initial aggressor.
- Lethal force can be used only if victim reasonably believes he is being attacked with deadly force (defense of others: when actually threatened with deadly force).
- No duty to retreat or comply with threats (minority requires retreat).
- Accidental injury to TPs during self defense is privileged (TP can sue original aggressor)
- Defense of others: MBE applies alter-ego rule saying that defender stands in the shoes of the person defended, and that person must have had the right to use force in self-defense. Minority of states require only that the defender reasonably believe the person defended was privileged to use self-defense.
Protection of property interests with reasonable force (but never deadly or serious bodily harm force).
- So long as trespass is not privileged, and actor reasonably believes force is necessary to terminate intrusion.
- Actor must first request trespassor to desist, unless useless.
- When one has trespassed onto another�s land, the latter must usually resort to legal process (i.e. eviction) rather than self-help to reclaim land.
- Trespass into the home may give homeowner right to use deadly force under self-defense.
- Defense to trespass: Reclamation of D �s property.
- Recapture of chattels
- Where personal property has been wrongfully obtained, the owner or possessor may exercise reasonable (but not deadly) force to recover it from culpable party. Owner must be acting promptly after discovery of trespass (hot pursuit), and demand return unless futile.
- If possessor got chattel by innocent conduct, only peaceful means can be used for recovery.
- No privilege if item was not wrongfully obtained or if owner is mistaken as to identity of culpable party.
Parental discipline: Reasonable force can be used by parent, agent of parent, or school for control, training or education. Arrest
With warrant, arrest is privileged if person arrested is named or described in warrant, or reasonably believed by actor to be person intended. Misdemeanor warrantless arrest: Breach of peace committed or reasonably appears about to be committed in presence of arresting PD or private citizen. Absolute privilege. Felony warrantless arrest by private person: Arrest privileged if felony has in fact been committed, and he has reasonable grounds to believe the man who he arrests has committed the crime. Otherwise, liable for false arrest or false imprisonment, even if citizen has reasonable grounds to believe the crime was committed. Reasonable mistake as to ID of person arrested is a valid defense. Felony warrantless arrest by PD: Same as above, plus when PD reasonably believes arrestee to be the felon, even if no felony has been committed.Necessity
Public necessity (reasonably believes necessary to avoid imminent public disaster): Absolute privilege: No liability for any damages. Private necessity: Incomplete privilege: Strict liability for damage, but not the trespass itself or other torts (including assault and battery). Occurs when trespass is necessary to avoid disaster, such as airplane making emergency landing. Abate nuisance: D owns land affected by nuisance, made demand, and uses reasonable force.Mistake: Defense only if D is acting quickly to protect his own right or public interest (duty must exist). Never a defense to trespass, battery, conversion. Consent
Consent can be express or implied (emergency room work on unconscious person, athletic contest). Consent must be informed: p must know all relevant facts. Exceeding consent: A person who consents can complain if the tort exceeds the scope of the consent. Example: Consent to fight, but not with brass knuckles. Consent negated by fraud (but not to a collateral matter) or incapacity (youth, incompetency, intoxication), or duress. No consent to criminal act (fight on a public street � breach of the peace).Age is not a defenseLiability
Intentional tortfeasor liable for all consequences, foreseeable or not, which are actual ("but for") result of his conduct. Liability is extinguished by an event which is entirely independent of D �s conduct. Nominal and punitive damages are available, even when no actual damages exist.Negligence (focus)
- Address duty and breach, then if necessary discuss causation.
- Analysis: General duty to act with due care. Breach: How would a reasonable person act with regard to the general duty. Causation: Did D act in that manner?
- Court determines:
- Whether the evidence makes an issue which the jury can decide
- Whether a legal duty existed
- Standard of conduct required
- Whether D conformed to that standard in a case where jury may not reasonably come to a different conclusion
- Applicability of any rules of law determing whether D �s conduct is a legal cause of the harm to p
- Whether the harm is legally compensable.
- Jury determines:
- Whether D has conformed to standard of conduct required
- Whether D �s conduct is a legal cause of the harm to p
- Amount of compensation for legally compensable harm
Duty, breach, causation, damages D must fail to exercise such care as a reasonable person in his position would have exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in p �s position, and his breach must cause p �s damages.Existence of duty
- Foreseeable plaintiff
No duty owed to persons outside geographic zone of danger at time of negligence. Rescuers are always foreseeable p �s.Omissions: In general, there is no legal duty to render assistance to someone in peril. Exceptions:
- Creator of peril
- Statute (hit and run)
- K (lifeguard)
- Voluntary assumption of care (must follow-through with reasonable care, and not stop if stopping would leave person in worse position then when aid started). But Good Samaritan statutes exempt dr�s and nurses from liability for ordinary (not gross) negligence.
- Common carriers, innkeepers and possessor of land held open to the public: Duty to protect against unreasonable risk of physical harm, and to give aid until they can be cared for by others.
- Duty of parent to control conduct of child from causing intentional torts or creating unreasonable risk of bodily harm if parent knows or has reason to know that he has ability to control child and knows or should know of necessity and opportunity for control.
- Master/servant: Master has duty to use reasonable care to control servant while acting outside scope of employment to prevent him from intentionally harming others or creating unreasonable risk of bodily harm if servant is on premises of master or using master�s chattel, and the master knows or has reason to know that he is able to control servant and knows or should know necessity and opportunity for control.
Prenatal injuries: Duty of care owed to fetus (i.e. dr�s negligence), and prenatal injuries are actionable so long as fetus is born alive.Standard of care
- Reasonable person: D �s conduct measured against the actions of a reasonable, ordinary, prudent person with average mental ability, with D �s special knowledge, training, disability or age (if child).
- Balance likelihood of harm and gravity of potential injury against social utility of D �s conduct and burden of adequate precautions.
- No lower standard for mental deficiency.
- Child: Must conform to standard of care of a child of like age, education, intelligence and experience. But child engaged in adult activity held to adult standard of care. < 4 y.o. usually doesn�t have capacity to be negligent. Emergency: Duty of care is to act as a reasonable person under the same emergency situation, so long as D didn�t cause the emergency.
Professionals with special skills or knowledge are required to exercise knowledge and skill of member of profession in good standing in same or similar locale.
- Specialists are held to a national standard.
- Good Samaritan: Licensed Dr�s, nurses who voluntarily render emergency treatment are exempt from liability for ordinary negligence, in some states. Liability still exists for gross negligence.
Statutes: If a statute establishes civil liability, then it conclusively establishes the standard of care.
- Criminal statute: Establishes negligence of statute was designed to protect against this type of injury from occurring, and p is a member of the class of individuals sought to be protected by the statute, and suffered the type of harm which the statute is designed to protect against.
- Negligence per se: Statute is conclusive presumption of negligence. D may not introduce evidence as to reasonableness, unless D �s actions were more reasonable than what the statute required. Minority allows D to show his conduct was reasonable despite statute.
If passenger paid money, he is an invitee and strongest duty is owed. Passenger treated as a licensee: Driver has duty to warn of known non-obvious defects and use reasonable care in driving. States with guest statutes: Driver not liable for mere negligent operation of vehicle (but liable for gross, wanton, reckless conduct).Innkeeper/Common carrier: Highest duty of care. Liability for slight negligence by employees, and duty to take reasonable action to protect against unreasonable risk of harm, including harm from third parties. Not strict liability: Negligence must still be present. Landowners/Possessors of land
D knew or had reason to know that children were likely to trespass
D knows or had reason to know that artificial condition is dangerous to children
Child subjectively unable to appreciate the dangerousness of the condition
The utility of the condition n burdens of protecting children are slight in comparison to the danger
Note: Child need not have been attracted onto the land by the danger.
- Possessor: Person who intends to control land, or if none, then who has immediate occupation. Landlord usually not liable to T or T�s guests. Exceptions:
- Must maintain common passageways in safe condition
- Liable for known dangers existing at commencement of lease if: LL contracts to repair; undisclosed condition known to lessor; land is open to the public; LL negligently performs repairs; or parts of land in LL�s control used by both LL and T.
Duty extends to rescuers.Bailments
Gratuitious (loaning something to a friend): Owner (bailor) must warn bailee of known defects that exist. Bailment for hire: Bailor must inspect chattel and make chattel safe for protection of bailee. Bailee need exercise only reasonable or ordinary care.Breach of duty
Show events leading up to injury, and then show that D acted negligently, using direct evidence. Res ipsa loquitor: "The thing speaks for itself." (circumstantial evidence). Inference of negligence when direct evidence of negligence is not available.
- p must show that the incident causing physical injury was not the type of incident that would not normally happen if someone wasn�t negligent.
- D was responsible for causing incident. Exclusive control, or D was responsible for others in control.
- p was in no way responsible for his injuries.
- Showing Res Ipsa will preclude a directed verdict for the D .
- Example: Human toe in sealed can of food.
Causation in fact (actual cause � may be lacking in omission fact patterns)
- But for D �s conduct, p would not have been injured. Substantial factor: D �s conduct was a substantial factor in causing p �s injury. Contributing cause does not necessarily eliminate liability. Joint tortfeasors: If tortuous acts of two+ parties caused indivisible injury which isn�t capable of apportionment, D �s are held jointly and severally liable and burden on D to apportion harm (Summers v. Tice). If injury is divisible and each D caused separate part of the harm, each liable for the portion he caused.
- Contribution requires each tortfeasor to pay their proportionate share if one tortfeasor has paid more than his share, either by judgment or settlement. Intentional tortfeasors do not have a right of contribution.
- Indemnity: Shifts loss from one tortfeasor who has been required to pay to another who should bear the loss instead. Example: Employer indemnified for vicarious liability by employee; retailer by manufacturer for products liability; agent/principle, landowner with non-delegable duty, car owner/driver. N/A for intentional torts.
Proximate cause (legal cause)
- Was the harm suffered within the scope of the risk? Probably not in fact patterns where minor negligence results in tremendous injury; freakish results; or multiple persons or factors contributing to the injury.
- Direct injury cases (no intervening causes): All direct causes of injury to persons are proximate. All direct causes of injury to property are proximate, so long as injury was a foreseeable result of D �s conduct. Indirect injury: Was the injury a foreseeable result of D �s conduct, even if the exact way in which the injury occurred was unforeseeable? If so, the chain of proximate causation is unbroken, and D is liable for all injuries.
- Foreseeability may be shown by acts D has taken to guard against such acts.
- Foreseeable: Subsequent negligence (including medical malpractice), attempted rescue and harm to rescuer (even if rescuer was negligent, but not reckless, or professional rescuer who has legal duty to respond), subsequent disease or injury resulting from original injury, subsequent accident or injury substantially caused by D �s negligence, thin-skulled p .
- Unforeseeable (breaks chain of causation): Subsequent criminal acts and intentional tortious conduct (unless foreseeable), acts of nature/god (except ultrahazardous activities), suicide.
- Factors: Different kind of harm, event isn�t normal, independent of D �s acts, caused by TP, TP is himself culpable.
- Actual damages must be proven, and are required for a negligence suit (not required for intentional tort suit).
- Personal injury and property damage is recoverable, for past and future injury and costs.
- Emotional injury is recoverable only if accompanied by physical injury, although trend is to allow recovery.
- Pure economic injury is not recoverable.
- Attorney�s fees not recoverable.
Nominal and punitive damages normally not available. Collateral source rule: Payments received from p �s insurance co., employment benefits or gratuities are not deducted from D �s liability, but p may have to reimburse insurance co if p recovers from D (or insurance co can sue D ). Payments from D �s insurance co. do reduce D �s liability. Public policy: No reason for D to benefit from p �s precautions, and insurance policy is K between p and insurance co, so insurance payment merely fulfilling K obligation.Defenses
- Comparative negligence (majority): Apportion damages based on degree of fault. D �s liability reduced by proportion of p �s fault.
- Contributory/Pure (majority): p can recover even if his negligence is greater than D �s.
- Modified: p �s negligence must not be equal to nor greater than D �s negligence.
Contributory negligence (minority): If p is even slightly at fault (negligent) in causing harm, no recovery from D , unless D was reckless.
- Exception: Last clear chance doctrine � p �s negligence may be irrelevant if D had the last clear chance to avoid the danger created by p �s prior negligence (including the actual ability to avoid the accident).
- If D sees or should have seen helpless p , D had last clear chance.
- If D actually sees a negligently inattentive p and should have known that p was unaware of the danger, D has last clear chance.
- Not a defense for intentional torts.
- Ordinary negligence of rescuer is not contributory negligence.
- Emergency requiring rapid decision is a factor in determining whether p �s conduct was reasonable.
Assumption of risk: p voluntarily (relieves D of reasonable conduct) and knowingly (subjective) exposes himself to risk of harm. Traditionally, this was a complete defense to a negligence suit.
- Must be express or implied.
- Comparative negligence: Assumption of risk is treated as an aspect of contributory negligence.
- Includes attending a sports game, but a rescuer is not assuming the risk of harm due to compulsion to assist another human being.
- Express: Representation of fact more than mere puffery. Misstatement of material fact makes D liable for any physical personal harm resulting from reliance on that statement, even if statement was made without negligence.
- Possible p �s include foreseeable p �s � privity not required.
- Defenses: Assumption of risk, misuse of product, failure to give prompt notice of breach to D .
Implied for particular purpose: Goods must be fit for special use if buyer relied on seller�s judgment in recommending the product for a particular purpose. Privity required. Implied warranty of merchantability applies to merchant sellers of goods which are not fit for their ordinary purpose. Goods must be of average quality and fit for their ordinary purpose. p must give notice within reasonable time. Personal injury and property damage available. Requires K privity between buyer D and seller p . Disclaimers are effective if not unconscionable.Negligence
Failure to exercise reasonable care in inspection or sale of product if defect would have been discoverable upon reasonable inspection. No provity between p and D required Manufacturers can be held liable for design defects and negligent handling. Retailers and wholesalers can be liable for negligence in handling, and negligence of predecessor when there is a duty to inspect (damaged container, prior problems with other products, manufacturer of dubious reputation). End owner of product is liable to TP�s in negligence if he reasonably should have discovered the defect. Negligence indicated if manufacturer fails to take advantage of known ways of making product safer. Balance cost/benefit. Example: Car manufacturers not putting airbags in cars when they knew it would be safer to do so. Defenses: Contributory negligence, assumption of risk.Misrepresentation
Misrepresentation of material fact by D Who intends misrepresentation to reach p D is a commercial supplier p relies on misrepresentation by using the product Damages for personal injury, property loss Assumption of risk and misuse are defensesStrict liability in tort
Defective product which is unreasonably dangerous
- Unavoidably unsafe products (knives, certain drugs) are not unreasonably dangerous.
- Design defect: Lack of ordinary care
- Manufacturing defect
- Insufficient warnings: Even if product not defective, so long as it is unreasonably dangerous. Disclaimers will not avert liability.
- Unreasonably: Balance harm, cost of better design, available technology, benefit of product, obviousness of danger.
Anyone who, in the regular course of business, engaged in the commercial distribution of the defective product may be held liable by anyone endangered by the defect (except for thiefs).
- Proper D is the company, not the individual employee who sold the product.
If D knows the product is unsafe or is substantially certain it is unsafe, p has action for battery. Liability is imposed on the entire chain of distribution: Manufacturer, wholesaler, retailer.
- Indemnification applies between D �s
- D �s can sue each other claiming the other was the proximate causation
- Independent contractor installer is not liable.
- Assumption of the risk is the only defense.
- Misuse is not a defense if the misuse is foreseeable.
- Contributory negligence is not a defense (example: p should have stopped using product when problem appeared).
- Supplier�s use of due care or failure to reasonably inspect is not a defense.
- Disclaimers of liability in sale of consumer items are not enforceable.
- Recall notice or warning letter does not cut off liability.
Damages: p can recover PI, property damages, and economic loss. But no recovery for purely economic loss.Strict liability
- Liability attaches regardless of how much care was exercised or how unforeseeable the event was.
- Ultrahazardous activities
- Factors: Activity cannot be performed with complete safety, harm is probable and a foreseeable consequence of the activity, potential injury is serious, D is unable to eliminate risks even with reasonable care, activity is uncommon or inappropriate in this area, value to community is outweighed by danger.
- Types of activities: Abnormally dangerous activities such as storage of explosives, blasting operations, crop dusting with dangerous chemicals, fumigation of building using cyanide gas, drilling oil wells in thickly settled communities, but excludes fireworks and guns.
- Celebratory fireworks are not ultrahazardous.
- Assumption of risk is a defense.
- D �s status as government contractor is irrelevant.
Strict liability for injuries and damage caused by the [dangerous] propensities of a wild animal, including injuries caused by fleeing from animal.
- Reckless acts of p is no defense.
- A wild animal can never be tamed or domesticated.
- Wild animal is one which generally does not serve mankind: Lion, tiger, bear, elephant, wolf, monkey, snake, alligator, guard dog, and all livestock.
- Assumption of risk is a defense.
Domestic animals (pets, sheep, horse, mule, bee, goat): One bite rule (puts owner on notice), unless knowledge of dangerous propensities before the one bite.
- Trespassers generally can�t recover for strict liability except harm by vicious watchdogs. Can recover in negligence where owner knows of presence and fails to post warnings.
- Assumption of risk is a defense
Strict liability for trespass by animals likely to roam.Worker�s comp and no-fault auto insurance are special forms of strict liability in which the tortfeasor may not be sued because they are protected by insurance. Only defense: p �s assumption of risk.Nuisance
No specific intent required. Substantial and unreasonable interference with the use and enjoyment of the land of others. Harm outweighs benefit, and the harm is offensive, inconvenient or annoying. Similar to strict liability in that D needn�t act unreasonably to be liable, so long as effect is unreasonable. Private: Interference with p �s right to use and enjoy his own land. May also be a trespass (invasion of exclusive possession). D takes p as he finds her. The nuisance must only affect p - not a common (public) nuisance. Public: Act that unreasonably inconveniences, obstructs or damages a right common to the general public. Usually a serious interference with public health, safety or peace. p must suffer some harm of a kind that is different from the general public for damages or injunction, or be a representative of the general public for class action; otherwise, the action is brought by a public official. p �s special sensitivities are not a factor. Defenses
Equitable (if remedy is injunction): Laches, unclean hands, adequacy of damage remedy, coming to the nuisance (not dispositive). Contributory negligence is a defense if p �s conduct was negligent, but not if reckless or intentional. If nuisance is an abnormally dangerous condition or activity, defense only if p assumed the risk. Assumption of risk Compliance with statute (zoning, pollution control, etc.): Relevant and persuasive, but not absolute defense.Remedies
Normal remedy sought is an injunction, which requires court to balance equities (economic hardship, benefit to public). Money damages, particularly for perminant nuisance. p can abate nuisance affecting his land by reasonable self help after notice to D and refusal by D to take action (damage to property must be proportionate to harm, and must be reasonable � otherwise, a defense to trespass). Abatement of public nuisance only when p has special damage, and only to the extent to protect his interests.Defamation
- Defamatory language by D
- One which subjects p to hatred, contempt or ridicule; or which lowers the esteem in which p is held by TP�s.
- Inducement & Innuendo: Defamatory not on the face of the language, but by adding extrinsic facts. p must prove these additional facts.
Statement must concern p
Audience must recognize that the statement is about this particular p . Statement must be reasonably susceptible of being understood as concerning p . Any living person may be defamed, but not deceased person. Defamation of company or product: COA is trade libel, not defamation. Group defamation is available only if the group is small (0-100 members; officers of a corporation, but not all lawyers). If group defamation is available, each individual has a COA.Publication: Intentional, reckless or negligent communication to at least one TP by D .
- Each repetition is actionable. Primary publisher and republishers are both liable. Disseminators liable only if they know or should-know of defamatory material.
- TP who heard the communication must have understood it (i.e. not in a foreign language).
- Private conversation which D knows or should know will be overheard is publication.
Proof of damages
p must show special damages (pecuniary loss) caused by defamation Exceptions:
- Slander per se: Oral statements relating to incompetence in trade or profession, present loathsome disease, commission of a serious crime, or lack of chastity of a woman. Libel (written statements or those broadcast on tv/radio): Common law required special damages unless libel was on its face (no innuendo or external knowledge required to understand statement�s defamatory nature), or per quod (innuendo or external knowledge is required to understand statement�s defamatory nature) if related to a slander per se category.
All special damages Damage to p �s reputation Damage to p �s feelings, medical bills attributable to emotional distress Punitive damages (only if private p shows malice) Retraction will reduce damagesDefenses
Retraction is not a defense, but may mitigate damages. Absolute privileges
Truth (or reasonable belief of truth) Communications between husband and wife Judicial (related to case), legislative (about anything in the course of duties) and executive duties. Consent of pQualified privileges � defeated by spite or knowledge of falsity (malice)
- Statements in D �s own interest when recipient of the information might be of assistance in preserving that interest (within general standards of decency)
- Statements in the interest of TP�s and publication is within generally accepted standards of decent conduct, or publisher has legal duty to publish. Examples: Book reviews, movie critique, credit bureau report, job reference (as long as D reasonably believed what he said was true).
- Statements in the interest of the public and information is communicated to someone who might be of assistance in preserving that interest.
- Reports of public proceedings (publishing a statement made at a public proceeding)
- Fair comment opinions
First Amendment privileges
Public figures and officials, defamed by media, regarding a public issue, must show malice (reckless disregard of truth or knowledge of falsity) Otherwise, only negligent failure to ascertain truthfulness of story is required. Includes public figures and officials defamed by media regarding private issue; private figures; and public figures defamed by non-media D �s.Right to Privacy
- Commercial appropriation: D appropriates p �s name or likeness for D �s advantage, in other than an incidental manner (usually requires commercial use). Public must connect likeness or name with p . False light: D places p in a reasonably objectionable, false or misleading, public light. Good fallback tort when defamation fails. If the matter is in the public interest, malice is required for recovery. Public disclosure of private facts: Facts must be private, disclosure would be objectionable (highly offensive) to reasonable person. Truth is not a defense. Qualified privilege defenses: Legitimate public interest, newsworthy, or matters contained in public records. Intentional intrusion on private seclusion: Where D deliberately intrudes (no publication necessary) into an area in which p has reasonable expectation of privacy. Must be highly offensive to the reasonable man. Evesdropping, peeping tom�s, examining files or mail, unwanted phone calls. Injunction available. Defenses: Privilege and consent. Truth is not a defense.
- Injurious falsehood: Publication of a derogatory false statement (not mere opinion) related to p �s interest in property or business (trade libel), for the purpose of causing p pecuniary loss, which results in p actually suffering monetary damages. D must be at least reckless with regard to falsity of statement. Absolute and qualified defenses in defamation apply. Interference with K relations: Knowingly and purposefully creating substantial difficulties in getting the benefits of an existing K, even if K is not breached. Injunctive relief available when money damages are inadequate. Defense: Protection of interest of D or TP. Interference with prospective advantage: Interference with future K relations (including non-commercial, such as employment) by unlawful or malevolent conduct (fraud�). Injunction available. Competition is a defense (no tort to beat a competitor to prospective customers). Malicious prosecution: Private person who initiates institution of civil or criminal proceedings against an innocent person is liable if D had no probable cause, initiated for primary purpose other than justice (malice), and proceedings terminated in favor of p . Damages for harm to reputation and emotional distress. Abuse of process: One who uses a legal process against another, with malicious intent, primarily to accomplish a purpose for which it is not designed, even if proceeding not terminated in favor of p . Fraud
Intentional or reckless misrepresentation About a past or present material fact (not merely opinion) With the intent of deceiving p (scienter � shown by lying, or conscious ignorance) And p justifiably relies on statement to his detriment p may recover benefit of bargain, actual losses, or rescission. Fraud gives punitive damages. p is anyone relying on the representation.Negligent misrepresentation
D in the business of supplying information to others Negligent misstatement of material fact Actual and justifiable reliance by p Actual injuryMisrepresentation
Fiduciary relationship between parties (executor/beneficiary, majority shareholder/minority shareholder, bank/depositors, principal/agent, family members, old friends) Active concealment (turning back odometer) Partial or incomplete statements: p must disclose enough so that his statements aren�t fraudulent or misleading:
- Statement re: rental property which does not mention it is illegal.
- Statement as to business income failing to disclose pendency of bankruptcy
- Statement disclosing one graveyard on premises without disclosing another
New information gained following disclosure which makes disclosure untrue or misleading must be disclosed to anyone known to be acting on basis of original statement.Survival, wrongful death, and SOL
- Tort actions survive p �s death, except torts against intangible interests (defamation, right to privacy), and are subject to creditors claims. All actions survive D �s death.
- Wrongful death: Spouse or next of kin can bring suit for pecuniary injury resulting to spouse or next of kin for loss of support and loss of consortium. No pain and suffering. Contributory negligence of deceased bars recovery. Not subject to creditors claims.
- Parent can recover expenses incurred and loss of service for injured child, as can spouses between themselves.
- Negligent death of viable fetus is permitted via wrongful death action.
- Statute of limitations runs from time of injury, not necessarily time of D �s act (but trend is to start clock at time of discovery). Medical malpractice runs from time of discovery.
Be sure to address indemnification of employer by employee Family members
Spouses are not liable for the other�s torts. Parents generally not liable for children. Liability if statute imposes such liability, or negligence in entrusting dangerous instrumentalities or failure to control child�s known dangerous propensities. Also liable if child engages in tortious conduct for the benefit of the parent, parent knowingly consents to such conduct, and failed to exercise proper control over child.Automobile owner generally not liable for tortuous conduct of someone else who is driving.
- Negligent entrustment: Owner liable for permissive use by person owner knows or should-know has negligent propensities.
- Family vehicle doctrine: Owner liable for tortuous conduct of immediate family members driving with express or implied permission of owner for family purposes.
- Permissive use doctrine: Owner liable for anyone using car with permission of owner, if a statute provides for such liability.
Respondiat superior: Employer is liable for the acts of employees, servants and agents which occur in the scope of employment and injure TP�s.
- Detour or slight variation is within scope, but frolic is not.
- Employer not liable for intentional torts committed by employee, unless in furtherance of employer�s business (even if contrary to employer�s instructions).
- Example: Bouncer evicting patron from nightclub.
- Independent contractors: Employer not liable for torts of independent contractor, except ultrahazardous activities (including construction), nondelegable duty (maintain common passageways, provide lateral support, care for business invitees), or negligent selection or hiring.