law school outline: torts


  1. Notes on Class & Professor

  1. Approach to midterm (negligence)

  1. If p is suing company, examine respondent superior
  2. Duty

  1. General duty of reasonable care
  2. Special duty if common carrier, statute, medical, etc.

  1. Breach/Duty
  2. Cause � But For
  3. Proximate Cause

  1. Initial injury
  2. Aggravation of existing injury

  1. Damages
  2. Defenses

  1. Introduction

  1. Torts = Pay compensation for harm done
  2. Procedure

  1. Cause of action
  2. p covers; insurance company can sue D (collateral source rule)

  1. But insurance company has already put p back where he was prior to tort, which is purpose of tort law.
  2. p must sue for intangible losses, insurance won�t cover.
  3. Socialized insurance which covers all expenses would eliminate tort law.

  1. Visit to attorney

  1. Facts
  2. Apply law to facts
  3. Higher damages are better because of contingency fee, costs involved. Contingency (33.3%) will mean p doesn�t recover all of her true expenses
  4. Attorney talks to D , D �s insurance co�s attorney.

  1. Complaint by p

  1. Motion to dismiss/demurrer (D ) stipulates that facts in complaint are true, but challenges legal sufficiency of complaint
  2. Answer (D )

  1. Discovery (depos, interrogatories)
  2. Pretrial: Summary judgment (p or D ) � valid if no factual questions
  3. Trial

  1. p goes first, has burden of proof by preponderance of evidence (51%)
  2. D motion for directed verdict if no reasonable jury could find D liable based on p facts.
  3. D evidence (second)
  4. Directed verdict motions (again by D if judge reserves earlier; p moves if believes D facts don�t support defense)

  1. Jury

  1. Instructions offered to judge
  2. Judge gives instructions
  3. Verdict

  1. General
  2. Specific

  1. Post trial motions

  1. Judgment NOV
  2. New trial

  1. Appeal

  1. Challenge

  1. Law
  2. Facts

  1. Negligence (this entire outline is about negligence): Act which a reasonably prudent person would not do under the circumstances, or the failure to use ordinary or reasonable care which a reasonably prudent person would do under similar circumstances, in order to avoid injury to themselves or others or to guard against probable danger. p has burden of proof to show reasonable care was not exercised. No fault/liability if reasonable care was used.  Duty: Court decides duty owed as a matter of law. Generally no duty exists.

  1. Standard of Care: Reasonable Person Standard

  1. Objective: D �s good faith irrelevant. (default)  Subjective exceptions

  1. Physical characteristics, but must act as reasonable person under circumstances
  2. Children = reasonable child of the same age, intelligence and experience.

  1. Conclusive presumption of non-negligence under 7
  2. Rebuttable presumption 7-14
  3. Child in an adult activity = adult standard
Superior skills (professionals)  Emergency acts must be reasonable and prudent in the emergency context. Allows for diminished accuracy in judgment and less opportunity to reflect on situation. Mental defectsExceptions to RPS

  1. Medical

  1. Duty is custom. Specialists held to standard required of similar specialists. Must have consent unless patient unable, common procedure or detrimental to patient. Information must be that which is customarily given and what a reasonable patient (objective) would want to know. Dr. has duty to warn reasonably identifiable, foreseeable 3rd party victims re: acts or conditions that could proximately result from B�s condition (mental or physical). Confidentiality doesn�t matter (except for AIDS). No affirmative duty to act unless on duty. If does act, standard of customary care applies. No liability for civil damages resulting from good faith attempts.
Common carriers & innkeepers: Liable for slight negligence.  Landowners and occupiers must not create unreasonable risk of harm to people on or very near land.

  1. Dangerous Condition

  1. Trespassers: No duty to those undiscovered. Liable to known T�s for artificial (not natural) conditions involving risk of serious injury known by OO.  Licensees (on property for their own purpose, incl. social guests): OO must make safe or warn re: known dangers.  Invitees (customers): Liable for dangerous conditions OO should know of. Duty to reasonably inspect. Must warn or fix (injury means it was not fixed). No duty to warn for very obvious dangers.
Activity: RPS applies  Landlord liability for: Hidden dangers, Common areas, Public use, Negligent repairs, Predictable risk of intruders. Exception for recreational land or natural conditions  Attractive Nuisance/Infants: Child must show he could not appreciate the risk for there to be liability.  Minority rule and California: Obligation to manage the property as a reasonable person under the circumstances. Failure to warn a known person of a known danger is negligence. No liability when visitor is committing a felony and is convicted.Establishment

  1. Burden vs. liability x probability
  2. Reasonable care shown by acting lawfully, taking reasonable precautions, acting on foreseeable risks.
  3. Judge can resolve duty if case is common. Otherwise question for jury.  Custom is minimal evidence, unless medical (then conclusive). Ignorance of reasonable custom can demonstrate negligence. Custom is not excuse for violating a statute.  Statute (negligence per se) does not set standard of care unless:

  1. Intended to prevent type of harm
  2. p within class statute sought to protect
  3. Violation of duty caused harm
  4. Exceptions

  1. Compliance with statute would have been more dangerous
  2. Impossible to comply
Existence of duty

  1. Cardozo: Duty owed only to foreseeable p or class of people in zone of danger.  Andrews: Duty owed to anyone injured as a proximate result (cause � question of public policy where liability assumed, question where it should be cut off) of D �s negligence.  California rule is all persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct (Rowland).  Relationship

  1. Causer of peril
  2. Rescuer must not make matters worse or prevent others from giving aid. Can abandon efforts if p not left in worse condition. D vicariously liable to instinctive rescuer for rescuer injuries.  Owner/occupier of land (see standard above)  Family members: No immunity except parent child.

  1. Parents not vicariously liable for negligent torts of their children. Liability for intentional torts and for not reasonably preventing harm.  CA view is parents must exercise authority within reasonable limits, standard is what an ordinarily reasonable and prudent parent would have done in similar circumstances.  Religious beliefs must yield to law when life of child in jeopardy.
Schools: Use ordinary care to reasonably supervise and protect students. No educational malpractice cause of action.  Government: No affirmative duty, unless:

  1. Acts to protect or unreasonably delays action upon decision to act.
  2. Safety agency liable if knowledge of danger and citizen reliance.
  3. Duty if agency performs a function that could be performed by a private enterprise
  4. Deprivation of right by person under color of state law.
  5. Immunity for governmental acts, not for proprietary functions (something a private business would normally do).
Persons in custody and control of another person who lacks self-protection  Privity of K (including medical, common carriers & innkeepers � see above) Relationship with harmer  Negligent entrustment: Test is foreseeability, risk of harm, cost of prevention. Alcohol: No liability for social hosts or commercial sellers unless drinker is minor or obviously intoxicated.

  1. Auto owners not liable for torts of driver unless negligently entrusted driver or permission given to drive car.
Employers negligent for hiring, retaining, supervising those who they know or should know are dangerous and for acts committed in their presence or within the scope of employment;

  1. Recommendations: Protected from defamation suits for nonmalicious communications, no liability for nonfeasance, liability for misfeasance.  Vicarious liability for torts during course of employment and some outside of course of employment, indemnified to employees if employees act negligently.
Economic harm

  1. Misfeasance re: information causing economic harm

  1. Duty to use due care in acquiring and communicate information when reasonably foreseeable that someone will loose money as a consequence of negligence  Test for negligence

  1. Awareness by maker of statement to be used for particular purpose  Reliance by a known party in furtherance of that purpose  Conduct by maker of statement linking it to relying party, evidencing understanding of reliance
Emotional distress damages relating to economic harm only when highly foreseeable shock from an abnormal event.Liability related to physical negligence causing economic harm (oil spill) when:

  1. Foreseeability of p or class of p �s for that type of injury. Type of p �s, certainty or predictability of presence, #�s, economic expectations disrupted. Extent of liability is proportional to foreseeability
  2. Special relationship
  3. Private actions for public nuisance
Breach: Can be shown directly or circumstantially. Measured by likelihood and severity of harm vs. social value of D �s conduct.

  1. p burden to prove that D �s conduct fell below standard

  1. Actual notice through direct (eyewitness) evidence  Constructive notice: Event happened in past, visible defect.  Proprietors are prima facie responsible for negligent dangers (regardless of cause) and have presumption of proving reasonable care. Nondeligable duty.
Res ipsa loquitur: Shifts burden from p to D , D must rebut presumption of negligence. When D gives some evidence in rebuttal, burden then shifts back to p .

  1. Event doesn�t happen without negligence (expert testimony); "More likely than not" test
  2. D probably had exclusive control over cause
  3. p or 3rd party didn�t contribute to danger (comparative negligence)
Medical malpractice

  1. Expert testimony demonstrating Dr. didn�t follow custom is required to find negligence, unless common knowledge. Expert sufficient familiar with standard of care practiced in the case.  Res ipsa loquitur in medical cases can be used even with expert testimony. Experts used to educate jurors. Key question is whether accident would normally occur in the ordinary course of events.  Informed consent: Patient�s burden is to prove that "but for" the failure to inform her, she would not have consented to the procedure (subjective). Minority rule is objective.

  1. Cause in fact

  1. But-for D �s conduct, D would not have been injured. p must establish within reasonable certainty that more likely than not (preponderance of the evidence), D �s negligence caused injury/accident. If p would have been injured even if D had not acted negligently, p recovers:

  1. 100% if chances of independent injury <50%
  2. x% if chance of independent injury was x% (>50%)
  3. 100% if injury or D �s actions were substantial
Joint and several liability: Multiple defendants (applies to economic damages only)

  1. Both liable if acting in concert (common plan or design) and as a direct and proximate result of an act:

  1. Either act would have caused the harm
  2. Both acts together caused the harm
  3. Successive acts compounded the harm
  4. Both acts were substantial factors

  1. Collect 100% from any one D , then let the D �s fight out who owes what % (D is in better position to determine comparative negligence). Or find each D liable for a certain % (p may not get 100%).
  2. Probs. with environmental cases: Identification, Boundaries, Source
Proximate cause (foreseeability)

  1. Tests

  1. Cardozo: Duty owed only to foreseeable p or class of people in zone of danger.  Andrews: Duty owed to anyone injured as a proximate result (cause � question of public policy where liability assumed, question where it should be cut off) of D �s negligence.  California rule is all persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct (Rowland).
Direct: Negligent D liable for reasonable, foreseeable results (probable consequences) if negligence is the precipitating cause of harm. Judged by orbit of duty (range of apprehension). Limited by distance & time.

  1. Eggshell p : D takes p as you find him/her. Includes increased or speeding up injuries as a result of D �s specific or preexisting condition. D must reasonably foresee only the type of injury, not the amount of damage.
Indirect: Intervening affirmative act of third person or act of god.

  1. Unforeseeable result = no liability
  2. Foreseeable result = liable, unless indirect cause had unforeseeable intervening tort or crime.

  1. Physical harm

  1. Goal is to return p to condition before accident.
  2. Future pecuniary loss awards are reduced to current value, takes into consideration investment returns.
  3. Subjective standard used
  4. Includes medical malpractice situations such as failure to diagnose cancer.

  1. Wrongful birth (brought by parent; malpractice)

  1. Mom can sue for birth of unwanted healthy child when sterilization fails
  2. Mom and child can sue for birth of defected child if physician failed to notice defects in time for an abortion.
  3. No duty to limit damages via abortion or adoption
  4. Damages shown by cause of sterilization is to prevent child for financial reasons,

  1. Wrongful life (brought by child)

  1. Child has no cause of action for mom�s failure to get an abortion when Dr causes defects.
  2. Child may have cause of action for deformities, but not against mom.

  1. Toxic tort claims

  1. Enhanced risk of disease (unquantified chance). Reasonable medical probability of disease occurring
  2. Medical surveillance
  3. Emotional distress: Physical injury needed, cancer ok, can collect for future harm
  4. Procedural changes: No statute of limitations, no single-controversy doctrine.
Emotional harm

  1. Intentional infliction of emotional distress does not require actual or threatened physical injury to recover.  Negligent infliction � physical manifestation usually needed to recover

  1. Person injured (or estate) can recover for:

  1. Wrongful death
  2. Emotional harm

  1. within zone of danger

  1. Feared for own safety and was aware, even briefly
  2. Apparent, imminent peril with actual exposure to danger

  1. Special relationship with harmer can override need for physical manifestation

  1. Family of person injured can recover for:

  1. Wrongful death
  2. Harm associated with viewing injury or being emotionally harmed by physical or mental injury to a family member (test for recovery was foreseeability that p would be emotionally harmed, modern law says three elements must be met):

  1. Close family relationship with injured person
  2. Physical closeness (time, distance) to accident; Zone of danger (exception for corpse, death telegram cases)
  3. Extraordinary emotional distress manifested by tangible physical injuries, exception for mistaken death/corpse cases

  1. Loss of consortium: Spouse, parent, child can collect for pecuniary loss: companionship, support, services, contributions, earnings; sometimes parent can recover for loss of child.

  1. Parent of baby taken from hospital or child of parent who wanders from nursing home can collect if hospital was negligent in their supervision.
  2. Objective standard: Reasonable p would react similarly and reasonable D would be able to foresee distress resulting from negligence Statutory caps in some areas, p must not die before award of judgment.

  1. No punitive damages for negligence, some for recklessness. None for wrongful death.
  2. Amount is a fact question, first up to jury, then trial judge. Appellate court can reduce only if verdict is so large that it shocks the conscience and suggests passion, prejudice or corruption on part of the jury. Because of single judgment, must make sure extent of injuries is known before judgment. Sometimes reduced if there is a large p pool so that all p �s have a chance at the pot. Otherwise unfair for some p �s to get $ and others not.  Collateral source rule: Insurance companies get reimbursed  Contribution: Each tortfeasor must pay proportionate share.  Indemnification: Secondary p entitled to indemnification from primary p . Primary p more at fault or more liable than secondary. Includes vicarious liability where employer D can collect from negligent employee.

  1. Contributory: p negligent contribution bars recovery.

  1. Except

  1. If p is a member of class protected by the statute which D violated
  2. If D acted recklessly, willfully or with knowledge
  3. If D had last clear chance to avoid. Only kicks in if p is in helpless peril or if D knew of danger but p did not.

  1. If you can get the case to the jury, jury will usually do a de-facto comparative negligence due to sympathy.

  1. Pure: p can recover % even where p more liable than D . Courts generally limit when very lopsided (D recovering 1% from p ). Will compare recklessness to negligence.  Partial/Modified: p can recover only if his negligence is lower than a certain level (usually that of D ). Will not compare recklessness to negligence. p must prove that D act was substantial factor in causing harm to p Multiple D �s negligence is combined against p . One D �s settlement releases him, other D �s credited settlement.
Assumption of risk:

  1. Express: K clause waiving negligence invalid if facility open to public, company has greater bargaining strength and standard adhesion contract. Public policy reasons: Spread risk, land maintenance. Signs limiting negligence must be drawn to p �s attention (bailment).  Implied: Knowledge of risk + voluntarily proceeding despite risk. Not applicable to risks inherent in a job i.e. firefighting, police.
No fault auto insurance eliminates tort action for car accidents.Avoidable consequences

  1. p must minimize losses (wear a seat belt, seek medical care, etc.)
  2. Question re: medical care with religious beliefs which conflict
  3. Existence = less recovery, but not elimination as in contributory negligence

  1. Duty
  2. Breach
  3. Causation
  4. Damages
Product Liability

  1. Intentional (battery): Selling a product that salesman knows is defective without warning is liable for battery if he knew that injuries were substantially certain to result from use. Punitive damages available.  Negligence (MacPherson): D liable only if they knowingly passed product on.

  1. Liable for foreseeable risk of harm to all foreseeable p �s.

  1. Negligent design
  2. Negligent manufacture: RIL may kick in if defect does not usually occur in the absence of negligence.

  1. Dealer owes no duty to inspect or test, unless they know it may be dangerous (unreliable supplier, not labeled, complaints, purchaser reliance). Failure of dealer to inspect does not excuse manufacturer�s liability, unless dealer actually knows of dangerous defect.
Warranty (K: UCC 2-314, 2-315)

  1. Fitness
  2. Merchantability

  1. Privity widely extended to foreseeable p �s.
  2. Waiver (2-316) or express remedy limitations (2-719)

  1. Not allowed if unconscionable (2-302), inconspicuous, failed purpose

  1. Notice within reasonable time requirement
  2. Covers only sellers, not lessors.

  1. Safety
Strict liability

  1. Design defect

  1. Crashworthiness (injuries not caused by but enhanced by defect)
  2. Feasible alternative test: Could D remove danger without serious impact on utility and price? CA says D has burden of showing its design was best.
  3. Consumer expectation test: Product did not perform as safely as ordinary consumer would expect. (R402A; food)
  4. Defect without foreseeability. Applies to both patent and latent dangers in normal use (encompasses some foreseeable misuse or carelessness). Duty to warn (i.e. allergic reaction to shampoo).
Manufacturing defect Inadequate warnings

  1. Protect against liability, unless defect could have been cured for small amount of money (flamable clothing).
  2. Unnecessary if danger is open and obvious (stairs)
  3. Types

  1. Product Less dangerous if instructions are followed
  2. Notify buyer/user of inherent dangers without reducing dangers

  1. Adequacy: Benefits and characteristics of warning outweigh cost of warning (time and effort required to grasp warning, dillution of warnings by quantity)
  2. End user must be warned, unless learned intermediary (drug warning to doctor) or bulk supplier
  3. Causation: Presumption that user would have acted differently if there had been an adequate warning.

  1. Any party who causes product to enter stream of commerce or passes it on is liable. Applies only to persons regularly engaged in this business.
  2. Bystanders are covered.
  3. Does not apply to services, only products.
Drugs: Benefit outweighs risk, so manufacturers not liable for unforeseeable harm.Defenses (additional): Unreasonable misuse, unforeseeable third party intervention or modification, assumption of the risk, federal law preemption. Contributory & comparitive negligence can reduce but not eliminate..Strict Liability

  1. Doctrinal development

  1. Liability without fault to all foreseeable p �s for foreseeable hazards.
  2. Public policy:

  1. Efficient allocation of resources: Deep pockets; spread risk
  2. Incentive to prevent harm: Liability at level of control

  1. Common carriers and innkeepers have higher standard of care

  1. Abnormally dangerous activity, even if completely reasonable. Criteria (balancing test): High degree of risk, Gravity of risk, Eliminated by reasonable care, Uncommon, Inappropriate to location, Social value, Unforeseeable intervening forces.  Dangerous animals

  1. Livestock: Liable for land damage. Some jurisdictions require p to fence to recover.  Wild (even if domesticated): Liable for PI resulting from vicious propensities. Zoo keepers only liable for negligence. Bees considered wild animals.  Domestic: Liable if negligent, on notice of vicious tendencies, or if dog bite statute provides SL (Cal).

  1. No liability to unknown and unforeseeable trespassers unless vicious watchdog, even then no liability if signs posted.
Vicarious liability / Respondeat superior

  1. Respondeat Superior

  1. Employer is held for tortious acts of employee done within scope of employment, or if employer acts negligently (in hiring, control, etc.)

  1. Employee vs. Independent Contractor: Employee subject to control of employer; IC not.

  1. Defined by Restatement of Agency �220: Control, type of work done, level of supervision, skills, who supplies tools, duration, method of payment (time/salary), that work is regular business of employer, beliefs of parties.
  2. Employer not liable for tortious acts of independent contractor, except:

  1. Dangerous activities
  2. Carelessly selecting an incompetent contractor
  3. Statutory obligation on employer may impose a non-delegable duty
  4. Examples

  1. Bus driver
  2. Auto repair person
  3. Door-to-door salesperson

  1. Scope of employment: Employer not liable for acts outside of scope of employment. In scope if purpose is to advance an employer�s business interest.

  1. Intentional torts, unless employer would benefit
  2. After work hours
  3. Personal animosity unrelated to job
  4. Frolics and detours: May be included in scope of employment if short distance and little time involved.

  1. Worker�s Comp: Employer liable for harm caused to employee by fellow employee via worker�s comp insurance system.
  2. Employer indemnified to employee.
Partnership: Each member of a partnership/joint venture is vicariously liable for tortious conduct of another partner committed in the scope of partnership�s affairs.  Parent-Child

  1. CL: No liability, but parent could be personally negligent (primary liability) in allowing child to undertake dangerous activity or negligent entrustment.
  2. ML: Liability imposed for intentional torts but with money caps.
Bailor-Bailee: Responsibility on bailee for problems, unless bailor should have realized problem (primary negligence)  Automobile: No SL. Owner may be independently negligent for lending car (to a drunk). Vicarious negligent liability for:

  1. Family purpose doctrine: Owner is vicariously liable for family members  Permissive Use Doctrine (CA): Every owner liable for acts of users with permission (even implied). Adult who signs off on child driving or gives permission for child to drive is liable.  Joint enterprise doctrine: All members liable for misconduct of any member in the enterprise. Limited where parties share business or financial purpose.
Captain of the ship: Person in charge of those working with him, and therefore able to control their conduct, is liable, i.e. surgeon in an operating room.Services (Medical)

  1. Generally strict liability does not apply to services, even if product is used during service (defective blood during surgury)
  2. Consumer expectation test: If it�s possible to determine the problem, then consumer can the reasonably expect that it will be determined.

  1. Physician failing to select a known cure is SL
  2. State of technology limits liability when uncertainty exists

  1. Contributory negligence: No defense unless knowing (subjective) contributory negligence (no duty to discover/guard). Min: Any contrib. offsets award.  Comparative negligence may reduce award by lack of reasonable care.  Assumption of risk is a defense if voluntary and knowing. Includes unreasonably ignoring recall notices (but it is foreseeable that some consumers will ignore recalls).  Preemption: Applies to products made in accordance with certain federal laws. Fed. laws may preempt state tort laws, meaning p must sue under available federal laws (if any exist). Example: FDA.  Repose: If product was put into stream of commerce a long time before harm occurred.

  1. Compensatory

  1. Injured p can recover value of gratuitously provided care because tortfeasor should not benefit from p �s ability to get cheap/free care.
  2. No recovery for purely economic loss
  3. Nontaxible.

  1. Purpose to punish and deter defendants, not compensate p
  2. Only awarded if D guilty of oppression, fraud or malice, express or implied. Must be proven by clear and convincing evidence

  1. Oppression: Subjects a person to cruel and unjust hardship in conscious disregard of that person�s rights
  2. Fraud: Intentional misrepresentation, deceit or concealment of material fact known to the D with the intention of depriving a person of property or legal rights or otherwise causing injury
  3. Malice: Act conceived in spirit of mischief or with criminal indifference towards obligations owed to others. Intentional and deliberate, with the character of outrage frequently associated with crime. A conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.

  1. D �s financial condition relevant
  2. Employers vicariously liable only if knowing negligent employment.
  3. Not available for deceased tortfeasor or public entity.
  4. Taxable
  5. Remoteness of harm (time) only factored in if when the harm took place no punitive remedy would have been available.
  6. Class action will apply if large number of p �s to protect $ pool.

  1. Enforced unless misrepresentation or duress
  2. Should be written to discharge for unknown injuries as well
  3. Should release any and all tortfeasors � a release does not automatically release joint tortfeasors unless express.

  1. High-low: If p recovers less than $10k, he gets $10k. If p recovers more than $500k, he gets $500k. In between, he gets what he gets.
  2. Mary Carter: p v. several D �s, one D switches to p �s side, and that D �s payment to p depends on p �s success against remaining D �s.
  3. Structured settlement: Annuity which provides annual income for life. Cheaper for D , security for p .
  4. Insurance

  1. Refusing to settle within policy limits when final judgment is above policy limits can result in insurer being charged with bad faith for advancing its own interests by compromising those of its insured if:

  1. Conduct is more than ordinary negligence (mistake in judgment)
  2. Insurer conduct must have been in gross disregard for insured�s interest (deliberate or reckless)
  3. p must show insured lost an actual opportunity to settle the claim at a time when all serious doubts about insured�s liability were removed...i.e. liability is clear, and potential recovery far exceeds coverage

  1. No ongoing investigations into liability
Intentional Torts Against Person

  1. General

  1. Intentional tort may also contain negligence
  2. Who is liable: Everyone! No vicarious liability unless notice.
  3. Intent

  1. Desires commission of tort or subjectively believes they are substantially certain to result
  2. Foreseeability alone is not adequate.
  3. Transferability

  1. Transferred from person to person
  2. Transferred from tort to tort if both are: Battery, assault, false imprisonment, trespass to land or trespass to chattels.

  1. Causation

  1. Wrongful act must exist
  2. Actual: D�s act or something set in motion thereby must be a substantial factor in bringing about the injury.
  3. Proximate: Tortfeasor liable for all direct & indirect consequences regardless of foreseeability.

  1. Damages

  1. Damage or benefit requires compensation.
  2. p �s supersensities do not count unless notice.
  3. No damages required for nominal recovery except intentional infliction and trespass to chattels
  4. Types

  1. Nominal: If no actual damages
  2. General: Emotional
  3. Special: Specific, identifiable economic losses
  4. Punitive: Allowed if intent to injure or harm p

  1. Volitional act intending to cause apprehension of or actual

  1. With desire or belief in substantial certainty (subjective) that the act will result in (2) and (3)

  1. harmful or offensive contact with p �s person

  1. Victim does not need to be aware of contact
  2. Harmful: Physical impairment of another�s body, or physical pain or illness
  3. Offensive: Unpermitted, offensive to reasonable person.
  4. Including objects attached to or identified with p �s body (broad)

  1. Volitional act of a threatening nature or an offer of injury intending to cause

  1. Words enough if impact creates sufficient apprehension of immediate harm (verbal threats to blind person); may be intentional infliction of emotional distress
  2. Threat of present injury to the p , not future or family members, etc.

  1. Conditional threat is enough if D is not privileged to assert the condition (self-defense, arrest)

  1. a reasonable apprehension (awareness) of an immediate battery

  1. D must have ability or apparent ability (unloaded gun) to inflict
  2. May be external, such as false warning of rattle snake
  3. Words negating gestures eliminate assault
  4. Ability to escape is immaterial
False Imprisonment

  1. Intended unlawful restraint

  1. Caused by actual force, threatening words, words asserting legal authority, deprivation of escape threats of physical force on family member or property, or failure to act when duty exists
  2. No obligation to submit, resist, test, search for escape or comply with demands so long as D has apparent ability to carry out threats.
  3. Detaining shoplifter on reasonable grounds for a reasonable time and reasonable manner is ok. Some juris allow civil penalty (fine, pay store) in lieu of criminal charges.

  1. on individual�s personal liberty or freedom of movement

  1. Present, not future
  2. Restrained within bounded area by actual or apparent physical barriers for any period of time

  1. No knowledge of reasonable means of escape; D liable for damages from reasonable attempt to escape

  1. Detainee must be aware of restraint at the time it occurs, unless unconscious harm occurs
Intentional Infliction of Emotional Distress

  1. Intentional or reckless conduct that is extreme and outrageous

  1. Conduct must be severe, more than a reasonable person could be expected to endure

  1. Damage must exist (substantial emotional distress or physical injury)
  2. Words sufficient if outrageous

  1. Possible First Amendment defenses
  2. Racial epithets usually go under harassment
  3. Parody needs actual malice

  1. Reasonable conduct is outrageous when

  1. Continuous
  2. p is elderly, child, pregnant, etc.
  3. D is common carrier, innkeeper if p is customer

  1. Bystander liability: Bystander must witness intentional tort leading to physical injury of close family member. Tortfeasor must know that bystander is present.

  1. Consent

  1. Express
  2. Apparent from conduct; Walking down sidewalk, playing football, standing in line, injection at doctors.  Implied in law

  1. Emergency if p is:

  1. Unable to grant/withhold consent;
  2. Immediate decision necessary;
  3. No reason to believe p would not consent; and
  4. Reasonable person (objective) would consent

  1. Parents, military and schools have privilege of reasonable force or confinement

  1. Beyond scope
  2. Fraud (vs. collateral fraud, where something indirectly related to obtaining consent is fraudulent, such as the payment with a counterfeit bill)
  3. Coercion, mistake, lack of capacity, crime involving breach of peace or if p is member of protected class
Self defense

  1. Reasonable belief (objective) of being or about to be attacked
  2. Reasonable force

  1. No retreat duty unless D realizes harm is unintentional or realizes p has mistaken D .
  2. Deadly force only against severe bodily injury or death.

  1. Minority: Retreat duty if safe and not in own home.

  1. Greater force that necessary ok if not causing more than fright or apprehension in p .
  2. Can�t punish assailant

  1. Defense of others

  1. Maj: Stand in shoes test: Liable for mistakes.
  2. Min but modern: Reasonable defender test: Privilege of defense even if victim has no privilege.
Defense of property

  1. Real

  1. Maj: No self-help allowed; use courts.
  2. Min: Force reasonable under the circumstances. Simple, non-wounding ejective force for trespasser.
  3. Necessity privilege

  1. Public necessity: Absolute.
  2. Private necessity: Qualified (liable for damages) privilege to protect self, property, abate nuisance.
  3. Necessity prevails over defense of property (trespass).

  1. Chattels

  1. Reasonable force, but never serious bodily injury
  2. Must be in fresh pursuit.
  3. Must demand return first.
  4. No mistake allowed.
  5. Peaceful, reasonable entry has privilege even if not in fresh pursuit if landowner at fault. Demand required unless futile. D must be entitled to chattel both at time of theft and at time of self-help.

  1. Limited privilege (liable for damages) if act of god places chattel on property.

  1. D can use force to evict or exclude chattels from D �s property when reasonably believed to be necessary to protect D �s interest in land or other chattels.
Constitutional Torts

  1. �1983 Civil Rights

  1. Every person

  1. Includes governments

  1. Immunity for good faith belief
  2. No government liability under respondent superior � need execution of government policy, etc.
  3. Lack of adequate training by itself is not enough

  1. acting under color of state law

  1. Can be contrary to law
  2. Can be "private action," e.g. shop keeper hold for police

  1. who subjects another or causes another to be subjected to

  1. Only against person who causes the action

  1. deprivation of constitutional right
  2. �1988(b) awards attorneys fees in civil rights cases to the prevailing party, other than the United States.

  1. Elements

  1. Publication of a statement to a third party

  1. Libel

  1. Deliberate and premeditated, permanent duration, physical embodiment, includes reading a written speech, widely disseminated
  2. Written slander
  3. Conduct/Actions
  4. Repetition of libel, even if oral, is libel

  1. Slander

  1. Oral
  2. Television & radio

  1. Intentional, negligent (failed to exercise due care), or foreseeable

  1. Overhearing is publication if D had reason to foresee third party and a reasonable way to avoid
  2. Mailing something to a blind person (foreseeable that someone must read it) or a secretary of an executive is published.
  3. Failure to exercise due care to remove defamation (graffiti)
  4. Disseminators (libraries, newsstands) are held to negligence standard: must have knowledge or reason to know of defamation to be liable. ISPs liable if they have an editorial function

  1. Third party must be capable of understanding statement (language, baby, etc.)
  2. Republishers equally liable

  1. May increase initial publisher�s liability if repub. intended by original publisher or reasonably foreseeable
  2. Includes failure to remove defamation from property

  1. Advertisements are treated as coming from the publisher, regardless if they are paid for.

  1. Third party reasonably interprets statement as being "of and concerning" p (demonstrate that statement is about the p )

  1. Person is actually named; Mistaken identity is actionable if third persons reasonably interpreted p as person intended
  2. Unnamed person requires colloquium: third person reasonably interpreted as applying to p
  3. Corporations and non profits if dependent on pubic for $ can sue as people. Groups and other non-incorporated associations can�t sue, only individual members can if the group is so small that the statement may reasonably by interpreted as applying to each member.

  1. Statement capable of being understood in defamatory sense

  1. (examine each potentially defamatory statement)
  2. Defamatory meaning: Defamatory assertion of fact (may include an accusation) reasonably susceptible of a defamatory meaning which tends to lower p �s reputation or deter others from associations .

  1. Min: Requirement to expose to hatred, contempt, ridicule
  2. Restatement: Defamation in the eyes of a substantial and respectable minority of the recipient to whom it was communicated
  3. Fair and natural meaning given to the language by a reasonable person of ordinary intelligence
  4. Does not include

  1. Insults without evidence
  2. Rhetorical hyperbole (look at context of statement)
  3. Parody

  1. Recipient doesn�t have to believe its true

  1. Inducement: If not defamation per se, p must show extrinsic facts that establish the defamatory meaning through innuendo (extrinsic facts known by recipient).
  2. Whether statement could be interpreted to carry that meaning

  1. Publication is read as a whole and in context with formatting may show parody or lessen headlines/photo captions. Sensational headlines may be read separately.
  2. Question defamatory if reasonably read as an assertion of a false fact. Inquiry itself is different.

  1. Special & general presumed if per se (issue of law):

  1. Allegations of commission of specific & serious crime
  2. Harm trade or business
  3. Loathsome disease (currently existing or communicable)
  4. Unchastity in a woman or impotency of a man

  1. Special: Specific losses such as employment, property, etc. that directly resulted from defamation. Not emotional distress. Must be itemized losses.  General: Harm to reputation, loss of friends, humiliation, etc.

  1. General damages presumed if special damages shown
  2. Newspaper/broadcast: Retraction must be demanded and refused within 20 days of publication. Retraction must be adequate. Limited to immediate disseminators: If the publication has a week to sit on the info, n/a.
Punitive: Allowed if actual malice (ill will), must be more than carelessness. Not given if there is a retraction.  Nominal: Awarded if p is libel-proof, speaker not credible, etc. Injunctions never available Libel-Proof p : p �s reputation is already so bad that there is no chance that p can obtain damages. Based in state law. Retraction doesn�t eliminate liability, but it can reduce damagesDefenses & Privileges

  1. Traditional tort defenses (consent, etc.)
  2. Truth

  1. Maj: Truth is a complete defense

  1. Minor inaccuracies are ignored; looked at only when sting would be changed by differences
  2. Republisher must prove underlying truths, not just that he truthfully quoted the original publisher.

  1. Min: Truth is no defense against actual malice

  1. Republisher cannot automatically rely on defenses or privileges of original publisher, needs own defenses.  Opinion, unless based on underlying defamatory facts.

  1. Facts = sufficiently susceptible of being proven true or false.
  2. "He is a liar" is a fact, not an opinion, and saying "In my opinion�" is no protection.
Reporting and criticizing

  1. Common law: Qualified privilege for fair and accurate report, comment or criticism of matter of public interest.
  2. Modern Law (not yet accepted by Supreme Court) "Neutral reporting privilege" of charges against a public figure (split re: apply against private figure)

  1. Newsworthy matters of general public interest or of public record reported in a neutral (accurate, complete and disinterested) manner.

  1. Facts must be true; opinions must be made honestly. No actual malice.
  2. Official reports (FBI) ok even if not public if proper attribution is made.

  1. Edwards: Responsible prominent organization or person involved in the controversy making serious charges against a public figure is protected by First Amendment when making accurate and disinterested report of charges, regardless of reporter�s private views about validity.

  1. The news is that the charges were made by a prominent person/organization, not the charges themselves.
Controversy must have existed before publication � reporter eliciting controversy is not protected.Reviews are protected so long as reasonable person could find the review�s characterizations supportable interpretations of the bookAbsolute Privilege

  1. Anything said in the course of a: judicial, legislative, other public official proceeding
  2. Communication between spouses
  3. Radio or TV stations that are compelled to allow a speaker to publish (i.e. public notices, equal time for candidates) have absolute privilege.
Qualified Privilege (lost through malice, excessive publication)

  1. Protectible private interest relevant to the defamation and the purpose of the defamation is to protect that interest (letters of recommendation, tenants in common, members of a governing body).

  1. Generally must be a common relationship or interest between publisher and recipient, or answering a request for information (not volunteering) if no relationship.

  1. Protectible legitimate public interest and the recipient is empowered to protect that interest (yelling to a cop to stop a bank robber). Does not apply to media consumer reports.
  2. "Right to reply" to accusation (Foretich)
  3. Right to protect your own interest, i.e. when you are wrongly accused of a crime you can implicate someone else, even if that implication later turns out to be false.
First Amendment

  1. Show status first, then apply proper standard.
  2. Public person, public concern (NYT)

  1. Public official: Substantial responsibility causing public to have interest in qualifications and performance beyond general interest, continues after retirement. Includes police, political candidates, principals, not teachers. Test:

  1. p �s position appears sufficiently important to give public an independent interest in qualifications and performances of that person
  2. p �s ability to access media to rebut
  3. Degree to which p has assumed risk of exposure

  1. Public figure:

  1. Limited purpose: Voluntarily entered into spotlight; not through litigation. Only applies for specific issue. (Gertz 345). Test (Waldbaum):

  1. Real controversy affecting general public or segment
  2. p thrust himself to become factor in resolution of controversy
  3. Defamation germain to controversy

  1. General purpose: Pervasive fame and notoriety.
  2. Test: Self help available (Gertz 343)

  1. Standard: Must show that statement was false and D had malice (intentional or reckless, not negligence).

  1. Public figure, private concern: Rarely happens.
  2. Private figure, public concern: Must prove negligence (actual damages; Gertz). Malice will give presumed/punitive (NYT).
  3. Private figure, private concern: Allows presumed and punitive damages without actual malice.

  1. Actual Malice (NYT)

  1. Abuse: using information beyond privilege. Test:

  1. Appropriateness of occasion
  2. Legitimacy of interest to be protected
  3. Pertinence of receipt of information by recipient
  4. Excessive publication (in reply case, compared to original publication)

  1. Malice

  1. Common Law: Evil motive or bad faith does not defeat the privilege (minority says it does).
  2. Constitutional: Lack of honest belief in truth of statements made (subjective knowledge that statement was false) or reckless disregard for the truth.

  1. p must prove with convincing clarity (more than preponderance of evidence).
  2. Doesn�t have to be reasonable belief, but lack of reasonable belief may show lack of honesty re: truth of statement.

  1. Minority requires reasonable belief in truth of statements.

  1. More than just ill will or bad motives.
  2. Anonymous phone call is reckless. Failure to investigate is not reckless unless purposefully avoiding the truth (St. Amant).
  3. Repetition of false facts is not malice unless repeater had lack of honest belief in truth of statements made or reckless disregard for the truth.
  4. Factors: Time frame, nature of interest of publication, potential damage to p if proves to be false
Negligence (Gertz)

  1. Requires preponderance of the evidence
Right to Privacy

  1. Appropriation of name/likeness

  1. Applies only to commercial appropriation for promoting a service or product (not newsworthy use)

  1. Celebrity: Right of publicity

  1. Exclusive control over publicity
  2. Right to control ability to sell image
  3. Unfair competition?

  1. Private person: Right of privacy � May apply to using name to fraudulently access personal information.

  1. Name/likeness

  1. Not important how the appropriation happened, only that it took place
  2. No parody defense.
  3. First Amendment protection for fiction (dramas), not for biographies or documentaries.

  1. Gathering or attempting to gather private/confidential information by an unreasonably offensive (objective) intrusive and improper method.

  1. No publication or special damages needed. Only emotional distress.
  2. Relationship between parties (employer/employee, insurance company, creditor, auto accident p ) may permit reasonable and unobtrusive inquiry and investigation into p .
  3. "Investigative testing" is not intrusion unless tester goes beyond bounds of licensee.

  1. High level of fraud in gaining entry can give damages. Fraud: False representation of a material existing fact with foreseeable actual and justifiable reliance resulting in damages.

  1. Highly offensive intrusion into a protected area of seclusion.
  2. Chattel

  1. Conversion: Substantial deprivation of p �s possessory rights in the property. D converted p �s chattel for D �s private use. Measure of damages is value of goods conferred (forced sale)
  2. Trespass: Less substantial deprivation. Measure is actual damages to the property.
False light (often goes along with defamation)

  1. Publicity (more than publication) by D
  2. That places p before the public in unreasonably offensive (objective) false light.

  1. Some courts say actual malice needed. Definitely needed for newsworthy statements.

  1. Format of publication (sensational headline with unrelated photo of p )
  2. Matter of public concern requires actual malice
Publicity given to private life

  1. Publicity (not just publication) of true private facts (hard to meet for public figure)
  2. Which are highly offensive to reasonable person; and
  3. No legitimate concern to public
  4. Manner of gathering information is a factor (illegal means: Florida Star case)

  1. Public record and facts occurring in public (Onassis)
  2. Truth is not a defense
  3. Consent
  4. Defamation absolute and qualified privleges
Other Torts

  1. Nuisance: Only applies to land. No first in time requirement.
  2. Misrepresentation

  1. Knowing misrepresentation by D

  1. Misfeasance
  2. Nonfeasance when a duty exists

  1. Intending to induce p �s reliance
  2. Causing p �s justifiable reliance
  3. Resulting in damages

Popular posts from this blog

power elite vs pluralist explanation models

big 4 vs. law firm comparison from an industry perspective

california bar exam primer