January 17, 2018 | Author: tconn8276 | Category: Conversion (Law), Intentional Infliction Of Emotional Distress, Trespass, Tort, Negligence
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TORTS Checklist for every torts question: • • • • •

Who is the π ? trespasser , user of product, …. ect Who is the defendant/who are the defendants? Who are the responsible parties?  manufacturere, LL, employer… ect What is the π ’s injury or injuries?  Harm to person What legal theory/theories can the π assert?  intentional tort, Make sure that it is a torts question.

INTENTIONAL TORTS Elements of Intentional Torts (OL I. A.) I.

Voluntary Act

Something that is Conscious and willed

A. Definition: A ∆ is not liable in tort for involuntary acts. ( reflex, unconsciousness) EXAMPLE: If Tom pushes Dirk into Priscilla and Priscilla sues Dirk, there is no liability for an intentional tort because Dirk did not engage in any voluntary act. EXAMPLE: Dina, during a sudden epileptic seizure, hits Poindexter. While Dina did not intend the harm, there is also no liability because there was no voluntary act by Dina. II.

Intent * Most Important* A. For most intentional torts, intent is established if the defendant either: 1. ∆. desired consequences or had the purpose to bring about those consequences 2. π to show that Def. knew that those consequences were substantially certain to occur

B. Incompetency 1. IF ∆ is mentally incompetent or Minor they can sill possess the intent to commit an intentional tort, but incompetency may affect whether such intent existed As long as def has Intent even If it’s a result of insane delusion there is liability for intentional tort EXAMPLE: Dolores shoots Patty because she thinks Patty is Hitler. Dolores is liable for battery not withstanding her insane delusion because she had purpose to cause contact. Delores is liable notwithstanding the insane delusion had purpose to cause contact

C. Transferred Intent 1. A ∆ acts with necessary intent to inflict intentional tort, BUT causes injury to 3 rd party , the ∆ intent is transferred to actual victim. 2. Applies only to: a. Assault b. Battery c. Trespass to Land and Chattels d. False Imprisonment EXAMPLE: Dorkus throw a rock at Xavier, but the rock misses Xavier and hits Pompador instead. Pompador sues Dorkus, and Dorkus would be liable because he intended to commit a battery on Xavier.

Dorkus liable --> Because he intended to commit battery on Xavier and intent transfers to cause harm to Pompador III.

Causation A. Π has to prove casual connection between Def. conduct and Π injury B. Proximate cause in intentional torts:


Harm A. Varies based on the kind of intentional tort. B. Ways to establish harm in intentional torts: 1. Specific injury 2. .


No Privilege or Defense

HYPOTHETICAL Dell sees his archrival Pratt walking across the street. Although Dell thinks it’s unlikely he can throw a stone that far, Dell picks up a nearby stone and throws it at Pratt. Has Dell acted with purpose/intent such that he may be found liable for tortious conduct?

Intent  Yes, it was his desire & purpose to make contact and bring about that result, despite him not believing It would happen

HYPOTHETICAL Darla, due to boredom, decides to shoot her BB gun into a passing commuter train. She doesn’t want to hurt anyone, but knows that the trains at that hour will be packed with passengers. She shoots her gun at a full passenger car passing by her, hitting Plax. Has Darla acted with intent such that she may be found liable for tortious conduct? Intent  Yes , even though it wasn’t her desire or purpose to cause harm, she knew that it was substantially certain that result would occur. Its not enough that she should have known π must show she ACTUALLY KNEW

HYPOTHETICAL Six-year-old Brian Dailey pulls a chair out from where he knows Mrs. Garrett is sitting. If Brian knew that it was substantially certain that this would cause Mrs. Garrett to fall to the ground, has he acted with intent? Can be Intent even if child is def. Children are liable for their own torts as long as def formed the requisite intent (known or certain to occur) C/L  Parents are not vicariously liable for intentional torts of children

HYPOTHETICAL Delbert is late for his Torts class. Without looking where he is going, he runs out of the library and collides with Parker. Has Delbert acted with intent? Intent?  NO. Might be negligence or recklessness. Delbert did not desire to cause contact and he did not know it was substantially certain nto occur form is conduct

Donna shoots arrow into room

Battery (OL I. B.) I.

A battery arises where: A. The ∆ Intentionally causes a harmful or offensive contact with the π or something closely connected to the π . Elements: A. Intent B. Harmful or Offensive Contact C. Of the person, or something closely connected to person



To establish intent, π has to show either: A. The def desired contact B. The def knew that contact was substantially certain to result from conduct Be sure to distinguish intent from motive. EXAMPLE: Pete comes into bar review and sits next to Dawn and says “my neck is killing me.” Dawn says that he has decided to learn how to become a chiropractor and offers to help. Pete refuses but Dawn grabs his neck and pulls. Whether Pete feels better or not, it is a battery and Dawn had intent. Motive --> to make him feel better BUT Purpose --> contact


The harmful or offensive contact element is satisfied if: A. The contact would Inflict pain or impairment of any body function, or If a reasonable person would regard it as offensive. EXAMPLE: Punching Arnold Schwarzenegger would be enough to constitute battery, even if he is not injured. B. Any contact that would be offensive to a reasonable person is enough for battery. EXAMPLE: Prissy hates to be touched and believes that when people touch her, they are trying to pass alien beings into her body. Dale taps her on the shoulder and asks her for the time. Prissy freaks out and sues Dale for battery. Dale was trying to touch her, but it was not harmful or offensive to a reasonable person. No harmful or offensive contact, No basis for battery. However, if Dale knows of Prissy particular susceptibility and acts he can be liable for battery. (1)

If defendant knows the particular susceptibility of the π :

C. It is sufficient for a battery if defendant causes a contact with something close to π . EXAMPLE: Workers at a workplace found the coffee to be increasingly unpleasant. They hid cameras and found out that a colleague was urinating into the coffee urn. This would be battery. Not direct contact, he caused something to bring a harmful or offensive contact. Has to be with the person D. Unlike assault, π need not be aware of the contact. At the time is takes place EXAMPLE: If Patsy falls asleep and while she is asleep, Barney kisses her on the forehead. Patsy finds out the next day and sues for battery. She would be able to recover. She had her bodily integrity invaded therefore her awareness does not matter 4.

Privileges and Defenses a.


Assault (OL I. C.) I.

An assault arises where: A. Intentional act that causes the π to experience a reasonable apprehension of an Imminent battery) B. ∆ must act with desire to cause immediate harmful or offensive contact or the Immediate apprehension of such contact, or know that such is substantially certain to occur. C. Liability for assault will not e found unless a reasonable person in the same position as a π would experience the same apprehension. However, If the π apprehension is reasonable, the fact that the ∆ lacked the ability to cause the harmful or offensive contact does not defeat liability. D. Elements: 1. 2. 3.


Intent Reasonable Apprehension Imminent Battery

To prove intent, defendant must: A. Def had purpose to create apprehension B. Def knew that apprehension was substantially certain to result from his conduct C. Transferred intent often arises with: Applies , (Assault, battery , False Imprisonment) EXAMPLE: Dune wants to scare Pim, so she throws a knife towards Pim but it ends up stabbing him in his leg. Dune intended to commit assault but there is also a claim for battery. Intent for assault satisfies intent for battery. Dune wanted to put Pim In apprehension of imminent battery Pim has claim for assault & has a claim for battery , the intent for assault satisfies for claim for assault and offensive contact since knife hit him EXAMPLE: Beavis has been harassing Donny at school. Donny decides that he wants to end this so he will scare Beavis into not picking on him. Donny finds his father’s loaded Uzi and brings it to school with the intent simply to scare Beavis. Donny accidentally pulls the trigger just as Precious comes walking out and gets hit in the right arm. Beavis can sue for assault. Precious can bring an action for battery. Bevis --> Assault ( Donny had desire to create apprehension) Precious --> Donny never intended to cause a battery, but under transferred intent, Intent to commit assault to Bevis transfers to assault to commit battery and precious can recover


Reasonable apprehension: A. Π must ACTUALLY SUFFER apprehension of imminent battery B. Π must be aware, unless ∆ knows of susceptibility of π Example: Sapp worked at a clock repair store. Mrs. Hill comes into the store and finds Sapp drunk. Mrs. Hill inquires about getting her clock fixed. Sapp reaches toward Mrs. Hill and asks to pet her and fix her clock. She sues for assault. Issue was about how wide the counter was because it determined whether Mrs. Hill could have a reasonable apprehension of a battery. Whether she could have reasonable apprehension of imminent battery--> if counter was wide then NO , if it was feasible for Sapp to touch her then she could have claim for assault.


Imminent Battery: A. Contact must carried out almost instantly EXAMPLE: If Dracula says he will come back tomorrow to suck your blood, it is not an assault. 1.Look for elements that negate intent. 2.language, ect


You often have assault and battery together. EXAMPLE: Throwing a water balloon at someone creates the reasonable apprehension of a battery (assault) and then being struck by the balloon is the actual battery. A. You can have one without the other. 1.Battery without assault:: Sleeping π is never in apprehension but suffered a battery. 2.Assault without battery:: Near-miss case. Def. throws something to scare them, but doesn’t hit them


Words alone rarely create an assault. (words lack imminence) EXAMPLE: Parker is walking down a deserted alley and heard a voice saying that they have a gun pointed at his head. This is enough for an assault even though it was committed by words.


Must be an intentional threat of an imminent battery. EXAMPLE: Dom and Pat are studying together for the bar exam. Dom notices that Pat has put together checklists and diagrams for herself and wants to borrow it. Pat says no, Dom gets mad and grabs her cat and holds it over the balcony, threatening to drop the cat unless Pat gives him her outlines. Pat sues Dom for assault. This is not an assault or battery. Has to be a threat of imminent battery or harmful offensive contact with person or something closely connected to person. Cat is not a part of her body

False Imprisonment (OL I. D.) I.

False imprisonment arises where:

A. Def intentionally confines π into a bounded area against π consent and π Is aware of confinement or injured by confinement B. Elements:







Against π will


Π knows of confinement or is inured thereby

Defendant has the requisite intent for false imprisonment if he: A. ∆ desired confinement B. Knew that confinement is substantially certain C. Motive is irrelevant. EXAMPLE: Target employees are excited for their holiday party. After the store closes, they will go out. At 9 p.m., without checking to see if anyone is in the changing rooms, someone locks up the store and Patina gets locked in all night and sues for false imprisonment. She would lose because she could not prove intent. Cannot show that target employees desired for her to be confied


Confinement: A. Confinement of π in bounded area. 1.No duration of confinement is required 2.Length of confinement does not determine FI. B. Force or threats of force C. Confinement generally occurs by: 1.the use of physical barriers 2.Failing to release the π where the ∆ has a legal duty to do so or by the invalid assertion of legal authority 3.Threats of reputational harm are generally insufficient. EXAMPLE: David tells Pablo that if he leaves his room, David will tell the world that Pablo is a virgin. Pablo stays in for a month and then sues David for false imprisonment. No confinement can be found because this was a threat of reputational harm. 4.If π knows of a reasonable means of escape: a. No confinement and no False Imprisonment EXAMPLE: If there is an open window on the first floor and the π knows about it, there is no confinement. If there is an open window on the third floor and π would have to jump and risk injury, this is not a reasonable means of escape. b. Risk of embarrassment is not a reasonable means of escape. EXAMPLE: Stuart takes all of Susan’s clothes and leaves her in the middle of the woods. Because Susan does not have a means of escape, Stuart has falsely imprisoned her.


Against the π ’s will: A. If Π consents to being confined there is NO false imprisonment EXAMPLE: Plaxis is apprehended by an undercover store detective. He is taken to a back room to call the police. Plaxis says he will wait for the police and then threatens to sue for false imprisonment but cannot

because he has consented to the confinement. VI.

Π must be aware OR suffer Harm or damages: A. If the π is aware she is being confined: 1.False Imprisonment has occurred and entitled do damages B. If the π is not aware that she is being confined: 1.Only false imprisonment claim If π is PHYSICAL INJURED due to confinement EXAMPLE: If during a lecture, all of the doors in the room were locked but students did not try to leave, there is no false imprisonment. If one person tries and cannot get out, there is a false imprisonment claim. EXAMPLE: If a baby is locked in a room, the baby probably does not know of the confinement. If there was some sort of physical harm, there would be a claim. Otherwise, no false imprisonment.

HYPOTHETICAL Delbert quickly locks Professor Longwinded’s classroom door during a Torts class, unlocking the room an hour later at the end of class. Every student is so engrossed in the lecture that nobody tries to leave the room during the class. Is Delbert liable for false imprisonment? No False Imprisonment No one was aware OR injured


False arrest:

Intentional Infliction of Emotional Distress (OL I. E.) I. Intentional infliction of emotional distress arises where: A. Def intentionally or recklessly engages in extreme and outrageous conduct that causes the π severe emotional distress B. Elements:


Intent or Recklessness


Extreme and outrageous conduct




Severe emotional distress

C. Mental State: 1.Defendant must act with intent to cause severe mental distress or be reckless in creating the risk of emotional distress. 2.Intentional: a. Consciously disregards a high risk of emotional distress b. . 3.Recklessness: a. Disregarded a high probability that conduct would bring about distress EXAMPLE: Dora had an ongoing feud with Pavala. Dora calls Pavala, disguises her voice and says “this is General Hospital. Your child has just been rushed to the emergency room.” Pavala suffers severe emotional distress. Dora has the intent for IIED. It was her goal to cause emotional distress and knew it was virtually certain. EXAMPLE: Dora is at the hospital and walks by the desk where people check in and overhears a discussion and thinks that one of the nurses is saying that Pavala’s child has been rushed to the emergency room. Dora calls Pavala. This would suffice for IIED because it would be a form of recklessness. b. No transferred intent doctrine, but: i. Because the mental state is broader and includes recklessness. 3rd parties can recover for IIED by showing that the def was RECKLESS as to whether their conduct would cause severe emotional distress EXAMPLE: Don stabs Paul’s father in front of Paul. If Don knows that Paul is there and knows that his victim is Paul’s father and Paul suffers emotional distress, Paul could recover against Don for IIED not because of transferred intent, but because Don was reckless. Paul can recover against Don NOT because of transferred intent BUT because Don was reckless by knowing his victims son was there witnessing the harm II. The element of extreme and outrageous conduct is satisfied if: A. Conduct beyond the bounds of decency 1.Offensive or insulting language is generally not considered outrageous. EXAMPLE: Delilah, in front of everyone, says that Paula’s dress is cheap and ugly. Paula is humiliated and has a heart attack from embarrassment and sues for IIED. Paula would lose. NOT CONDUCT THAT EXCEEDS ALL BOUNDS DOES NOT SA a. EXCEPTIONS: > lesser conduct i. Def is engaged in certain callings (Innkeeper, common courier). If reasonably offensive ii. Def knows of the π s particular susceptibility EXAMPLE: Dratt knows that Pon is superstitious and releases black cats onto his property and sends him shattered mirrors. This would generally be tolerated, but since Dratt acted to exploit Pon’s susceptibility, it would be considered IIED. iii. Someone in position of authority uses racial or ethnic insults against someone who works under them *developing*

III. Causation issue that might arise: A. Is π an emotional basket case IV. Severe emotional distress A. Π does not have to prove: 1.Physical injury to recover B. Π simply has to prove: 1.More than the level of mental distress a reasonable person could be expected to endure. 2.Severe emotional distress, neither transitory, nor short lived emotion 3.The more outrageous the ∆ conduct the easier it will be for π to establish the requisite mental Injury V. IIED to 3rd parties A. Where the ∆ conduct is directed at a 3rd party, the ∆ is subject to liability to a π, assuming the other elements are satisfied B. Elements C. If the ∆ intentionally or recklessly causes severe emotion distress: 1.Toa π who is an immediate family member of the 3rd party, 2. where the π is present at the time and the ∆ is aware of the π presence; OR a. Can recover if no bodily harm 3.To any other π (regardless of relationship) who is present at the time, if such distress results in bodily harm.

Trespass to Land (OL I. F.) I.

Trespass to land is: A. Def intentionally enters or causes something to enter the land of the plaintiff interfering with plaintiff possessory Interest B. Elements: 1.




Entry into


Plaintiff's land

To establish intent, π needs to show that: * tested heavily* A. That def desired to enter the land B. Def knew that land entry Is substantially certain to result from conduct C. Mistake is no defense D. Not intent to trespass, it is the INTENT TO ENTER LAND EXAMPLE: Irene is driving around and gets lost in an unknown area. She sees Dennis standing on the sidewalk. Irene pulls over and asks Dennis for directions to the freeway entrance. Dennis says to take his dirt road to the end, and make a left. Property doesn’t belong to Dennis, but to Prince who has hidden cameras. Finds Irene and sues her for trespass. Prince will recover because Irene intended to enter that land and Dennis intended to get Irene to enter the land. It was her purpose to enter the land nominal damages Dennis had the intent Irene is pushed onto land - There is no trespass on irenes part, but Dennis might be liable If he knew she would land on the land E. When a person is trespassing, they are liable for the full extent of their harm. EXAMPLE: Irene is driving carefully across the dirt road, hits a pothole and loses control. She hits an azalea bush worth $15,000. She is liable for this destruction because it occurred while she was trespassing.


To maintain action for trespass: A. Π must be in actual possession OR have right to immediate possession of that land B. Adverse possessor or leasee may maintain action on land not owned by them. C.


However, if the person who holds legal title to the land is not in possession, that person may not maintain a trespass action.

Entry: A. ∆ enters or causes a 3rd person or object to enter onto the πs land 1.Anything can cause an entry Has to have some tangibility B. Enters onto π land lawfully but then remains when under a legal duty to leave OR C. Fails to remove an object from the laintiff land when under a legal duty to do so EXAMPLE: Darla fires a gun across Pentium’s property. This constitutes trespass because the bullet crossed the property of the π .


Π ’s land: (who can bring action? who is proper plaintiff?) A. Π land includes airspace and subsurface to a level π did or could make beneficial use of B. Anyone in possession of land can bring action (Tenant, adverse possessor EXAMPLE: Darla thinks she is crop dusting her own land but the pesticide lands on Owen’s land. He has leased the property to Tom. Tom can bring a trespass to land action because he is in possession of the land. If permanent damage occurred, the owner would have a claim.


Remedies a. Three types of remedies in tort: b. Legal i. Damages c. Restitutionary i. Designed to prevent unjust enrichment d. Equitable

i. Injunction II.

Trespass to land: a. Nominal Damages b. Monetary damages don’t to land c.

Ejectment i. Action brought by plaintiff to recover possession of real property* 1. Proof of legal title 2. Proof of π right to possession AND 3. wrongful possession by the ∆ ii. Successful π entitled to: 1. Recovery of property 2. Mesne damages: compensate for loss of use of land and are measured by rental value of prop or benefit gained by wrongful possessor whichever is greater iii. At C/L where ∆ mistakenly trespasses on or takes possession of π's property & makes improvements 1. Π is entitled to recover the property & need not compensate the ∆ for these improvements. 2. True even If ∆ acted in good faith believing he had rightful possession of property

Trespass to Chattels (OL I. G.) I.

Trespass to chattels arises where: A. Def intentionally Intermeddles with plaintiffs chattel causing harm. With personal property of plaintiff B. Elements: 1.





Plaintiff's chattel




Intent is satisfied when: A. ∆ Intentionally performs the physical act that interefers w/ π chattel. B. ∆ liable even if he did not intend or recognize the legal significance of his act. C. Mistake Is no defense EXAMPLE: Dale is leaving a restaurant and takes a blue denim Levi’s jacket, believing it is his but it is really Paul’s. This is sufficient to create intent for trespass to chattels. D. Conduct giving rise to trespass to chattels: 1.Def uses or 2.borrows without authorization or 3.Damages 4.In significant enough way to provide damages


Chattel A. Tangible personal property or intangible property that has physical representation promissory note, documents in which title is merged warehouse receipts or bills of landing) B. Interference is actionable if it interferes with plaintiff possession 1.Dispossession: Direct interference , ∆ takes chattel or wrongfully refuses to return it 2.Intermeddling: interference with chattel that does not directly affect π possession C. Π must be in actual possession OR have right to immediate possession of Chattel


Harm: Actual Damages A. Actual damage or dispossession that is not entirely insignificant EXAMPLE: Keeping the jacket for five minutes is not significant enough. Keeping the jacket for a week would be and Paul would likely be able to recover the rental value of the jacket. EXAMPLE: Pam and Dextra are at Pam’s apartment. They are playing a game where every time “foreseeability” comes up, they do a shot of tequila. Once they finish the first bottle, Pam says she will go to the store to get more. Pam’s dog is in the backyard and Pam tells Dextra not to let the dog in the house or touch the dog. Pam comes back to find Dextra holding the dog and sues for trespass to chattels. If the dog is not harmed, there is no case. Dextra desired to intermeddle with puppy NO ACTION because there is no harm


Remedies: A. Damages Replevin restitutionary remedy that arises to get back personal property of which one is has been dispossessed B.

Conversion (OL I. H.) I.

Conversion arises where: A. The def intentionally exercises dominion and control over plaintiffs chattel or personal property constituting a serious or substantial interference B. Elements: 1.



Dominion & Control


Substantial interference


Intent: * tested most* A. Mistake does not matter must result in substantial Interference EXAMPLE: Dale takes Paul’s jacket and loses it. Sued for conversion. Is liable. Had the purpose to exercise dominion and control over the jacket and by losing it, there is a serious and substantial interference. Dale would have to pay fair market value. Bona fide purchaser for value. EXAMPLE: Cruella steals Prissy’s Ming vase worth $1,000,000. Cruella sells the vase to Drake, who pays fair market value. Prissy can sue Cruella for conversion. If Prissy cannot find Cruella, Drake is a converter as well and can be sued. Either has to pay $1,000,000 to Prissy or return the vase. Drake kept it so creating substantial Interference Intended to keep it


Dominion and Control A. More serious than trespass B. A longer period of interference and greater use of the chattel by the ∆ , more likely it will be considered conversion C. Types 1.

Wrongful acquisition (theft, embezzlement, receiving stolen property)


Wrongful transfer (selling, misdelivering, or pledging)


Wrongful detention (withholding from owner)


Loss, destruction or severe damage

5.Material alteration OR 6.Significant misuse IV.

Factors to Consider A. Extent & duration of ∆ dominion and control B. ∆ intent to assert right inconsistent w/ others right of control C. ∆ good faith D. Extent & duration of resulting interference w/ π right to control E. harm done to chattel AND F. inconvenient & expense caused to π


Remedies and damages A. Typical remedy is forced sale: 1.Converter is required to pay the Fair Market Value of Chattel AT THE TIME is was converted 2.Plus consequential losses B. Replevin: (Only for personal Propert NOT for real property) 1.An action at law for recovery of specific chattels tht have been wrongfully taken or detained. 2.Permits π to recover Immediate possession of property (at beginning of action) 3.When π seeks to recover the chattel, he must post bond as security against the possibility that judgment will be found for ∆ . ∆ may post bond as well if he wishes to retain chattel until action has concluded 4.No seizure of chattel is allowed until hearing has taken place to determine the πs entitlement to the chattel 5.Can mitigate damages C. Damages suffered from depravation may also be recovered 1.Measure: Market value at time depravation - market value at time action commenced or value of lost use 2.Judgment for π but chattel not returned, π recovers present value of chattel established at trial



Intentional tort

Intentional tort

Committed by intentionally dispossessing or intermeddling with a chattel in the possession of another

Committed by intentionally exercising dominion or control over a chattel and seriously interfering with the rights of the owner.

Defendant is liable for damage or diminished value of chattel.

Defendant is liable for the full value of the chattel at the time of the conversion.

Defenses and Privileges to Intentional Torts EXAM TIP

Remember POPCANS

Privilege Others Property Consent

(OL I. I.)

Authority Necessity Self-defense

Privilege I. II.

∆ may not be liable for conduct that would ordinarily subject him to liability A privilege may exist where: A. Person affected by ∆ conduct consents B. Important personal or public interest will be protected by ∆ ordinarily prohibited conduct, & this interest justifies harm caused C. Satisfied when: 1. ∆ must act freely In order to perform an essential function 2. ∆ has burden of proving existence of a privilege & 3. that the privilege was exercised reasonably under the circumstances

Consent (battery. Assualt, ect..) D. Even if ∆ committed an intentional tort, he is not liable If the π consented to the act which constituted the tort. E. Consent must be effective & F. ∆ must not exceed the scope of consent G. If the π does consent: There Is not recovery for any damages H. Π can manifest consent expressly, by implication, or as a matter of law. 1. Express consent exists where: Plaintiff by words manifests willingness to be exposed to intentionally tortious conduct EXAMPLE: Professor is concerned about his weight and needs to stop eating Twinkies. Tells class that if they see him eating a Twinkie, do whatever it takes to stop him. Student grabs his arm and pulls the Twinkie away, professor sues for battery. Would lose, gave express consent. a. Limitation:Any conduct in excess of reasonable consent 2.Implied consent arises where:Plaintiff through conduct manifest willingness to be exposed to tortious conduct EXAMPLE: X plays pickup basketball. During the game, an opposing player trips him and causes him to injure his leg. Even if done intentionally, X had impliedly consented by agreeing to play. a. Limitation:What the def would reasonably believe Standard is:


EXAMPLE: Polly is in line for a vaccination but does not know this. Offers her arm and receives an injection. Polly sues for battery, but there was implied consent. Reasonable to believe consent had been given. 3.Consent as Matter of Law ( Π is unable to consent) a. Emergency action is necessary to prevent death or serous injury b. Reasonable person would be expected to consent under circumstances c. No reason exists to believe that π would not consent Mistake can vitiate consent when:it goes to consequence or nature of act. But when its to a collateral matter there is still ocnsent EXAMPLE: Dale is about to become intimate with Penny when Penny asks if he has herpes. Dale, knowing he does, lies and denies it and then sleeps with Penny. Penny gets herpes and sues Dale. Will not be deemed to have consented. If Penny is a prostitute and they engage in sexual relations and Dale pays Penny with a counterfeit bill, there is still consent because the counterfeit bill is a collateral matter.

HYPOTHETICAL Billy Club asks Hima Tohma if he can hit her with his new baseball bat. Hima responds, “Sure—you can’t swing that foam bat hard enough to hurt me anyway.” Billy, knowing that the bat is, in fact, made of wood, swings and hits Hima. Can Billy claim the defense of consent for the battery? There is NO CONSENT the bat Is actually made of wood goes to nature of act and therefore there would be no consent


Defenses to Consent A. Even when consent is expressly or impliedly given by the π the circumstances may be such that this consent is Ineffective & will not operate as a defense. B. Frequently tested: Mistake, Fraud, Duress, Incapacity, violation of criminal statute 1.

Mistake: Consent not effective if: a. It is the product of a mistake of fact or law as to the nature or consequence of the def act AND b. The def is aware of the mistake


Fraud: Consent is not effective if: a. Induced by ∆ intentional deceit as to the essential consequence or nature of his act


Duress: Consent is not effective a. If it s induced by threat of imminent harm to the π OR b. By a false assertion of lawful authority over the π


Incapacity a. Young children and people whose mental capacities are impaired by mental disease ,defect, or intoxication are incapable of consenting o tortious conduct. b. Without the particular knowledge the ∆ may interpret a π’s actions as consent


Violation of criminal statutes a. Majority a.

consent as ineffective where the ∆’s tortious conduct also constitutes a crime.

b. Minority: a. consent to a criminal act is effective for purposes of civil liability for that conduct., b. So long as ∆ act doesn’t constitute breach of peace c. Exception i. Consent ineffective if π is member of the protected by the violated criminal statue.

Self-Defense I.

Arises where: A. The def honestly and reasonably believes that the force used is necessary to avoid Imminent harm

B. Defendant only need be reasonable and must respond with proportionate force. II.

Once the threat is over: There Is no claim of self-defense EXAMPLE: Donna and Paula exchanged harsh words. Paula says “wait until the next time I see you alone. I am going to teach you a lesson.” Donna is alone in a parking lot that night when she sees Paula walking towards her with something in her hand. Donna picks up a stone and throws it and hits Paula, causing injury. Paula sues for battery. Donna intended contact but argues self-defense based on the earlier threat. Even if Paula was only carrying a fishing pole as an apology gift, if Donna believed she was threatened, she can respond accordingly.


The force used must be proportionate to the threat: A. Cannot use deadly force when threatened with non deadly force B. Retreat: 1.

In all jurisdictions do not have to retreat form one's home


Major Jurisdictions No Retreat , Minor jurisdiction Retreat

HYPOTHETICAL Dylan sees Percy approaching him in a bar, with a baseball bat poised to strike him. Believing that Percy intends to hurt him, Dylan wrestles Percy to the ground. Is Dylan still privileged to defend himself if it turns out that Percy was not actually intending to hurt Dylan? Yes, he reasonably believes he’s being threatened and responds proportionately and is not liable and successfully assert self defense

Defense of Others I. A third party who comes to aid of another and commits Intentional tort because she honestly and reasonably believes he is protecting one for imminent harm is not liable for tortious conduct EXAMPLE: Igor overheard the threat that Paula made to Donna. Donna is in the parking lot when Igor sees Paula walking towards Donna. Igor picks up a stone, throws it and hits Paula. Paula sues for battery. Igor could successfully assert defense of others because he reasonably believed that Donna was at risk of imminent harm and responded with proportionate force. II. ∆ who makes mistake about whether defense of 3rd person is justified or to the degree of force that is reusable cannot assert the defense & will be liable to the π for intentional tort.

Defense of Property I. Def may take reasonable steps to defend property ( real and personal property)

II. A defendant may never use deadly force to protect personal or real property. A. Look for situations where it escalates where it starts as property and escalates III. One may use reasonable force to eject a trespasser from personal property after asking them to leave. IV. Recapture of chattels: A. One may use reasonable non deadly force to retrieve personal prop provided a request was made and def is in hot pursuit EXAMPLE: Dale took Paul’s jacket. Paul saw it and asked for it back. Dale takes off with the jacket. Paul can chase Dale and use reasonable force to get it back. No room for mistake is he was wrong he would be liable

Necessity I. The def is asserting that right thing to do was to commit Intentional tort. The lesser evil was committing Intentional ort II. ∆ is permitted to injure π’s proper if this is reasonable necessary to avoid substantially greater harm to eh public, himself, or to his property. A. TWO TYPES 1. Public necessity:Def (often govt actor) is acting to protect public form severe harm EXAMPLE: Earthquake starts a fire in the city and to stop the fire, Devilla dynamites Paxton’s home to stop the spread of the fire. Paxton sues for conversion and trespass to land. Paxton would lose. The greater good was trying to stop the fire. Greater good was trying to stop fire a. Could raise Fifth Amendment takings issues. Takings issues (con law context) b. ∆ not liable for damage to property 2. Private necessity: *tested more* Where def commits intentional torts and believes it is better than to risk the likely consequences EXAMPLE: Demora is out on the water in a small boat loaded down with important cargo when a storm arrives. Demora takes her boat and ties it to Prince’s dock notwithstanding the “No Trespassing” signs. Demora could assert this defense. lessor evil to commit trespass to land than to risk losing the boat and maybe her own physical safety was at risk a. Defendant will be liable for any harm caused during the exercise of the privilege. b. If private individual is exercising privilege of private necessity she Is liable for harm caused

HYPOTHETICAL Dev is boating on a lake when his motor boat springs a leak. Concerned that he will sink and drown, Dev motors to the nearest dock, which belong to Paulo. Dev ties his boat to Paulo’s dock and walks across Paulo’s land in search of help. The boat damages the dock while moored there. Is Dev liable to Paulo for trespass? for the damage to the dock? Def can assert necessity , but because harm occurred during privilege even def not liable for trespass def has to pay for harm to dock

Authority I.

Where ∆ is police office acting pursuant to warrant, valid on its face he is not liable in tort for the arrest. Arrest A. Felony: Police officer can arrest person he reasonably believes committed the felony B. Misdemeanor: Police officer can arrest misdemeanors that constitute breach of the peace C. Private individuals: Can arrest if he reasonably believes a felon is being committed

Shopkeeper’s Privilege II.


A ∆ shopkeeper is not liable for false imprisonment if: A. He has reasonable suspicion that the π has stolen goods B. Uses reasonable force to detain the person C. And detains the π for a reasonable period & in reasonless manner D. Either on premises or in immediate vicinity If store owner has reasonable suspicion that someone has shoplifted they may detain that person for a reasonable time provided they conduct an investigation in a reasonable manner 1.Duration 2.Suspicion 3.Manner of investigation EXAMPLE: Drug Co. has an undercover detective who sees Paxton shopping on a hot day in a long heavy coat. He believes he saw Paxton put something into the pocket of the coat. Grabs and detains him until the police determine that he did not take anything. Depends on length and manner of detainment.

Discipline IV.

Parents and teachers may use reasonable force to discipline children


Question 1

David’s neighbor, Jack, is a musician and practices with his trumpet every day, late into the night. One day, David saw Jack at the local grocery store. Frustrated by the amount of noise coming from Jack’s house every night, David approached Jack from behind and yelled, “If you don’t stop playing the trumpet, one day I am going to kill you.” Unknown to David, Jack was wearing the earplugs he wore to perform live and did not even know that David was speaking to him. Dismayed by Jack’s apparent indifference, David telephoned Jack and repeated the threat. Jack was shocked to discover his neighbor disliked his music, and quickly apologized. That night Jack went to bed early and did not practice his trumpet. In a cause of action against David for assault, Jack will A) prevail, if the reason he refrained from practicing his trumpet was fear of retribution from David. B) prevail, because he was upset by the telephone call and David should reasonably have known that he would be. C) not prevail, because he was unaware of David’s statements in the store. D) not prevail, because David said “one day I am going to kill you.”



Question 2

Larry, the owner of a small bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts with large pockets and sneaking books out in the pockets. Two days after the most recent shoplifting incident, on a particularly warm day, Tim entered Larry’s bookstore wearing a sweatshirt similar to those worn by the shoplifters. Larry noticed Tim’s sweatshirt and watched him spend over an hour slowly moving through the various book stacks. Expecting the worst, Larry moved a large heavy book cart in front of the front door, and called the police station to report a shoplifter. Tim eventually moved to the cash register to pay for his selection of books. After paying for his books, Tim discovered his exit was blocked by the book cart. Shortly thereafter, the police arrived and asked Tim to empty his pockets. Tim did not have anything in his sweatshirt pockets. Tim’s cause of action for false imprisonment will A) fail, because the shopkeeper’s privilege will prevent the cause of action. B) fail, because Tim was not harmed by the confinement. do not have to be harmed C) succeed, because Tim was aware of the confinement. D) succeed, because Tim was not in fact a shoplifter. wouldn’t have action if he was


NEGLIGENCE MOST IMPORTANT* WHEN IN DOUBT DEFAULT LEGAL THEORY I. Frame the elements as follows A. Duty: 1. Whether the law imposes a legal obligation on the def toward the plaintiff B. Standard of Care: 1. The measure of the duty owed C. Breach of Duty: 1. The failure to meet the standard of care D. Cause in Fact: 1. Connects def breach to plaintiff injury E. Proximate Cause: 1. Are there policy reasons to cut off liability with other elements established F. Damages: 1. Plaintiff has to prove damages G. Defenses

Use headings on a negligence question—separate out the elements. On an essay, use the facts and engage in analysis.


Duty Foreseeable Π

Generally no affirmative duty to aid Misfeasance Nonfeasance

Special Relationships

I. General duty rule: A. Obligation requiring the ∆ to conform to a certain standard of conduct to protect others from unreasonable risk That when the def is engaged in affirmative risk creating conduct causing personal Injury or property damage a duty is owed to a foreseeable plaintiff. B. Duty is a significant issue where there is: (EXCEPTIONS) 1. Unforeseeable Plaintiff 2. Nonfeasance -- Failure to Act 3. Harm other than personal injury or property damage 4. Where the def Is a land possessor/ LL/Utility/Government entity

Unforeseeable Π s II. In the famous Palsgraf case, Justice Cardozo articulated the rule that: A. ∆ owes a duty only to foreseeable πs III. Traditional Rule A. No affirmative duty to take action to aid or protect a π who is at risk of injury unless such action is taken. Based on nonfeasance and misfeasance. B. If ∆ conduct is responsible for placing π in a position where he requires aid, the ∆ has a duty to take action to aid π .

1. Misfeasance (Negligent Omission): Occurs when ∆ fails to do something that a reasonable person would have done( stopping at stop sign). Duty is owed. 2. Nonfeasance: Failure to render promised act EXAMPLE: Drudge is driving negligently, jumps the curve and collides into the back of a parked car. The parked car contained explosives, and a huge explosion occurred. Three blocks away, Polyanna was walking down the street and was hit by a piece of falling glass from the explosion. She sues Drudge for negligence and will lose because she is not a foreseeable π .

Rescuers: Owed an independent duty III.

General Rule: Resueres must act reasonable in effecting the resue. HYPOTHETICAL Della negligently fails to maintain a stool in her ice cream parlor. Xena, a customer, sits on the stool and falls on to the ground because of the disrepair of the stool. Parker runs across the ice cream parlor to help Xena, but slides on the ice cream Xena dropped when she fell, breaking his ankle. Does Della owe Xena a duty? Parker? No duty the negligent act in not maintaining the stool Xena would be owed not Parker BUT rescuers will be able to recover because a duty was owed to them


Misfeasance: A. Affirmative Risk creating Conduct B. Negligent Omission EXAMPLE: Debo is driving and because he is not paying attention, fails to stop at a stop sign. Owes a duty to π . This was misfeasance, created an affirmative risk of harm.


Nonfeasance begins with the assumption that there is no duty at all. Failure ot Act A. Duty to rescue or aid EXAMPLE: Diablo is walking on the railroad tracks when he hears the sound of a baby crying. He knows a train is coming and watches it kill the baby. The parents of the baby sue Diablo for negligence. Diablo owes no duty. i. EXCEPTIONS: 1. The def tortious conduct creates need for rescue EXAMPLE: Dexter is driving across a narrow bridge and is driving on the wrong side of the center line. Polly tries to avoid him and drives off the bridge. Dexter has a duty. His negligence created the need to rescue. Owes a duty to Polly

IV. Undertaking to Act A. Some jurisdictions say you are only liable if you leave the defendant in a worse position. B. Good Samaritan statutes: EXAMPLE: Delilah is on a deserted beach and sees a car fly over a bridge into the water. Delilah has no obligation to rescue, but if she undertakes to act she cannot then swim away. If she did rescue and injury him. Those who do rescue others are not going to be liable. They will need to be grossly

negligent and reckless and more culpable to be liable V. Reliance A. Def creates reliance EXAMPLE: Palatin calls Dina saying that he has chest pains. Dina says she will take him to the ER. On her way over to his house, Dina runs into friends and goes with them instead of Palatin. She owes him a duty because she said she would come to his aid. VI. Special Relationship: Relationship of mutual dependence A. ∆ has duty to take affirmative action in aid of plaintiff where a special relationship exists between ∆ π B. Recognized relationships 1. Employer-Employee during scope of employment 2. Common carrier and innkeeper – customer 3. School-pupil 4. Parent-child 5. Business-patron & 6. Jailer-prisoner 7. Social Co-adventurers EXAMPLE: If Diablo was the father of the baby on the railroad tracks, he would have a duty to rescue it. HYPOTHETICAL Darla, an expert swimmer, is sunbathing on a deserted beach when suddenly Paulo’s car drives off a bridge and into the water. Is Darla liable if she ignores Paulo’s plight and continues sunbathing? What if she starts bringing Paulo back to shore, then abandons the rescue because she spots a rare fish she wants to inspect? Typically, Darla would have no duty to rescue despite her ability and awareness of the need Nonfeasnace no obligation to take any affirmative steps. BUT here she begins to act and stopping the rescue is no reasonable conduct. However she cannot leave plaintiff In worse position

HYPOTHETICAL Dino, a driver for Mauvehound Bus Lines, sees that a passenger is having difficulty breathing. Does Dino have a duty to come to the passenger’s aid? Do the other passengers? Employee of common courier. Here there Is a specil relationship herefore he has a duty to rescue but the OTHER passengers do not have a special relationship

Duty to control third parties II. There is no duty to control the conduct of a 3rd party as to prevent him from causes physical harm to another UNLESS: A. A special relationship exists between the ∆ & the 3rd party that imposes a duty upon the ∆ to control the 3rd party’s conduct, OR B. A special relationship exists between the ∆ & the 3 rd party that gives the 3rd party a right of protection EXAMPLE: Delberto and Tina are strangers sitting next to each other at a bar. They start chatting and Tina says her husband is going to come by and pick her up. She says she is going to kill him when he does. Tina leaves and shoots her husband. Husband sues Delberto for not warning him. EXAMPLE: A prison has a dangerous criminal locked away and the criminal escapes. The prison has a duty to warn people in the neighborhood. EXAMPLE: A mother knows that her son always tries to kill babysitters when she leaves him with them. She must warn the babysitter. EXAMPLE: Psychotherapist exercises enough control that when they know of the patient’s dangerous propensity, there is a duty to warn the party that might be in danger. C. Providers of alcohol 1. Traditional rule: Social host provider of alcohol had no duty to that 3rd party 2. Dram Shop Acts: a. Impose liability on commercial establishments who serve alcohol Not expanded to social hosts D. Negligent entrustment: 1. Form of misfeasance--> Duty to any foreseeable π. ∆gives something to someone that knows Is incapable of handling dangerous object EXAMPLE: Father gives son a gun to play with. If son shoots a third party, the father can be sued.

Duty to Protect: (3rd category to nonfesance) III. One generally has no duty to take affirmative steps to protect others form 3rd party criminal acts absent an exception. IV. Start looking for special relationship Courts require high level of forseeability in order to find existence to duty. Special relationship is not enough A. EXCEPTIONS: Special Relationship


Tenant Paxton is robbed at gunpoint by a stranger while in the laundry room of his apartment building owned by Drucilla. Another tenant was robbed in the laundry room last month. Can Paxton proceed with a negligence action against Drucilla? Duty issue : Nonfeasance context. Paxton Is saying LL should prevent the conduct Special Relationship ? Yes. LL & Tenant Is there enough forseeability to impose duty? Yes. there was a prior similar incident Paxton has not won, there is only duty established here

Government Entity V. When the defendant is a governmental entity, the question of whether the defendant owes a duty to the π will depend on the function the government is fulfilling that gives rise to the cause of action. A. Proprietary function: (Will not find Duty) 1. Acting in area traditionally occupied by private entities 2. Treat them the same as any other ∆ B. Discretionary activity: (No duty) 1. A decision that involves using judgment 2. Allocating Resources C. Ministerial function: (Will find duty) 1. Once govt has undertaken an act It must do so non-negligently EXAMPLE: Parlu is injured at an intersection when she it hit by a car. She sues the city, saying there should have been stop sign. City will probably win. The decision of where to place the stop sign is a judgment decision on the part of the city. EXAMPLE: If the stop sign was installed incorrectly, Parlu would be able to recover against the city. This would be ministerial function and parlu would be able to recover 2. Public duty doctrine: a. When a government agency (e.g., police, fire department) is sued for failing to provide an adequate response, courts will find no duty. b. Failure to respond doesn’t create duty i. EXCEPTIONS: 1. There has been reliance on the response of the 2. There is a special relationship between the π and the agency or 3. The agency has increased the danger beyond what would other wise exists 3. If the defendant is a utility: (water , electric company) a. Courts have refuses to impose duty beyond those who are in privity of contract to the utility.

Negligent Infliction of Emotional Distress (NIED) VI. If the π ’s injury is not personal injury or property damage, duty issues arise.

A. Emotional Distress Special rules for claims for emotional distress EXAMPLE: Dell is speeding and driving negligently. He collides with and injures Puka, breaking her leg in five places. Puka cannot work, has a lot of medical bills and her car is destroyed. She is in great pain and will walk with a limp for the rest of her life. Puka can recover for pain and suffering. Pai n and suffering are not subject to the limitations placed on claims for pure emotional distress. Flows form physical injury VII. Direct Actions: A. When ∆ engages in negligent conduct π suffers emotional distress and some physical manifestation 1. In most jurisdictions, to recover for emotional distress the π must: a. Have been in the zone of danger : The area i nwhich he was at risk of being physically injured; AND b. Have suffered some accompanying physical manifestation of the emotional distress EXAMPLE: Pavi is standing on the sidewalk waiting to cross the street. Dab jumps the curb, almost gets run over but jumps away. Pavi has a heart attack because he was almost run over. A duty is owed because Pavi was in the zone of danger. DUTY ISSUE: BECAUSEE NATURE OF HARM IS EMOTIONLA DISTRESS. THERE WAS A NEAR MISS, ALMOST PHYSICAL INJURED AND SUFFERED HEART ATTACK OF EMOTIONAL TRAUMA c. EXCEPTIONS: i. If ∆ negligently transmits a telegram announcing death of a loved one; AND a. π can recover ii. if the ∆ negligently mishandles a corpse iii. In a minority of jurisdictions, if defendant has a preexisting duty to π , π may recover for negligent infliction of emotional distress. iv. Some jx have eliminated the requirement of physical manifestation of emotional distress & allow πs to prevail based on a showing of severe emotional distress without accompanying physical symptoms VIII. Bystander Actions: A. Physical harm occurs to a loved one and the π sues for his emotional distress as a result of the Injury to another. 1. Many jurisdictions require the bystander to have been in the zone of danger. 2. (However, most courts have now adopted some version of the bystander liability rule. A π may recover for negligent infliction of emotional distress under a bystander theory if he a. was located near the scene of an accident; b. suffered severe emotional distress; and c. had a close relationship with the victim.) EXAMPLE: Mom and Dad go out for a walk with Junior. Dad and Junior are holding hands and crossing the street, Mom stopped to tie her shoe. A negligently driven car runs over and severely injures Junior. Dad jumps out of the way. Mom watches the events. Mom and Dad both have heart attacks and sue the driver for NIED. Under MBE, only Dad can recover because he was in the zone of danger. Would have direct and bystander action. Mom cannot recover. Mom not in zone of danger under MBE rule 3. Some jurisdictions allow π s outside the zone of danger but on the scene of the injury to recover for emotional distress.



Elements for 3rd party recovery

Elements for 3rd party recovery

Theory 1

Theory 2

Π must be present when conduct occurs to 3rd party victim Π mist be a close relative of the 3rd party victim


∆ is aware of π’s presence; AND

Π without a special relationship must be present when conduct occurs AND

Π suffers actual bodily harm ( a physical manifestation of emotional distress)

Π suffers severe emotional distress (whether or not it results in bodily harm

Theory 2: (bystander action)

Theory 1 (direct claim)

Π is present at the scene and witness the event

Π is within the “zone of danger” AND

Π suffers sever emotional distress AND some accompanying physical manifestation of the emotional distress


Π is a close relative of the 3rd party victim AND

Π suffers sever emotional distress

Wrongful Conception, Wrongful Birth, Wrongful Life EXAM TIP

On the MBE, this is usually a wrong answer due to the jurisdictional splits. EXAMPLE: Xena goes to see Dr. Destructo for amniocentesis and Dr. commits malpractice and punctures the fetus’ lung. Child is born with a collapsed lung. Child can sue Dr. because negligence is why he has a collapsed lung.

I. Wrongful conception applies where the injury is: A. Arises where π has had a negligently performed vasectomy or other negligently administers form of birth control. B. The π did not want a child, but now has one. C. Damages typically involve: 1. Cost of the birth and cost to rectify the ineffective contraceptive measure II. Wrongful birth is: A. Claim of parents for birth of an unhealthy child 1. Wrongful birth claims generally stem from: Physician’s failure to diagnose a disability in the fetus, which he π claims would have led her to not give birth to the child 2. Many courts do not recognize claim for wrongful birth , but some courts will award: 3. Damages: a. Award extraordinary costs of having child with special needs, but may be offset by having the child III. Wrongful life is: A. Child's action for having been born unhealthy B. Most courts will not award damages 1. Some courts Costs of child’s special needs after age of majority

Land Possessor Liability (Last duty area)* Heavily tested*


Standard of care applied to owners and occupiers of land varies according to which of the three categories of danger activity were involved In the injury to the π. A. Activities  The injury to the plaintiff is derived from the conduct of person on the land B. Artificial conditions  The injury to the π derived from circumstances created by persons on the land, such as buildings, excavation, cultivation, ect C. Natural conditions  injury to the π derived from circumstances not created by persons but existing o nthe land such as natural bodiesof water, tress occurring naturallt, falling boulders, ect a.

Π s on the land (1)

Invitees (a)

An invitee is: A person who enters land with ∆ express or implied consent of land possessor There to confer potential economic benefit held open to public at large Public Invitee: Business Invitte: EXAMPLE: Shoppers in a store or patrons in a museum.


Defendant has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land.

(2) Licensees (a)

A licensee is: A person who enters the ∆s land with ∆ express or Implied permission. No purpose benefitting the ∆ or ∆ activities

HYPOTHETICAL Delbert invites his classmate Paco to dinner at his home. Paco is injured when his hand is cut on a piece of broken tile in Delbert’s bathroom. Is Paco a licensee or an invitee? Licensee Social guest Is there Duty to warn of known concealed dangers

(b) Land possessors must warn licensees of: Concelaled dnagers


Trespassers (a)

Trespassers are: Enter land without consent of land possessor


Only obligation on the land possessor is: Avoid the Infliction of willful and wanton harm


Status can be debatable and can change. EXAMPLE: A Dean is having an open house for students of her law school. When Parton trips over a sprinkler head covered by grass and breaks his ankle, he sues Dean. He is probably an invitee because he was there to confer a benefit on Dean. There is a duty, but has Dean been reasonable?

Status invitee to confer economic benefit on Dean. Duty of reasonable care Parton starts wandering around the house and ends up cutting himself on a piece of broken marble. No longer an invitee. Could he have reasonably believed that he had implied consent to be in that part of the house? If a licensee, Dean had a duty to warn. If a trespasser, no duty to warn. Not invitee. Is he licensee or trespasser. (5)

Other duties owed by land possessors (a)

Activities on the land: Injury to the π derived from the conduct or persons on the land

Aritifical conditions : only for invitee does ∆ have to search out dangers. licensee expeted to take property in condition ando nly has to warn about concealed dangers (b)

Only for an invitee does a land owner have a duty to search out dangers on the property.


If there are known or frequent trespassers: Land possessor must warn of known artifical dangerous conditions EXAMPLE: Dabya knows of trespassers. If she builds a crocodile pit and hides it, she must put up a warning of the dangers. If there is naturally occurring quicksand, she does not need to warn.


child Trespassers (Attractive Nuisance Doctrine) (a)

If the conditions apply, even though there is a trespassing child, the child will be treated like an invitee.


Five factors: 1)

Artificial condition is a


Is it forseeable that children are likely to trepass where the artificial condition is located


The child trespasser is unaware of the risk; AND


forseeable risk of unreasonable danger to tresspassing children


Risk of danger of theartificial condition outweights utility EXAMPLE: Six-year-old Pablo is trespassing on Devin’s land. Devin is building a new barn so there is scaffolding and construction. Pablo starts walking around when one of the boards cracks, he falls and breaks his back. Pablo sues Devin. Court will apply the factors. WOULD 6 YR OLD APPRECIATE DANGER? IF JUDGE APPLIES DOCTRINE CHILD IS INVITEE AND OWED DUTY.


Minority approach:

Abolished using status and owing duty to any land entrant. MBE looks at status


Π s not on the land (but adjacent to it) (1)

Artificial condition on the land: There is a duty of reasonable care


Natural condition on the land: No duty unless it’s a tree in an urban area EXAMPLE: Desiree builds a faux Eiffel Tower on her property. On a windy day, a piece of the tower breaks loose and hits Pierre on the head. Pierre sues Desiree. She owes him a duty of reasonable care. It’s artificial condition she brought to property If Pierre is blinded by a naturally occurring quicksand pit, he is not owed a duty.


Landlords and Tenants (1)

Landlords are not liable unless: (a)

A common area


Negligent repairs


A Known hidden dangerous condition


Where LL knows T will hold prop open to public at large exercise reasonable care

Standard of Care (OL II. B.) I. 4 standards A. Reasonably prudent B. Child C. Statutory neg per s:e D. Professionals II. Reasonably Prudent Person Under the Same or Similar Circumstances A. Objective standard of care: 1.Look at ∆ conduct and measure against reasonably prudent person 2.Jury must decide what level of conduct is standard B. Must determine what circumstances are relevant. EXAMPLE: 30-year-old Dolores has lived her entire life in NYC. She has never driven a car. Dolores accepts a job in LA, takes the driving test and passes. On her first day as a licensed driver, she collides with Pinky and Pinky sues. The fact that it is her first day is irrelevant. Objective standard (1)

Defendant must rise up to the level of the average person in the community.


We do not consider: Mental abilities, sanity, slow reflexes


We do take into account: (a)

Physical conditions (blind, loss of limb)

(b) EXAMPLE: Delbert is notified that his child was injured and taken to the hospital. He jumps into his car and speeds to the hospital and ends up injuring Plax. Jury will consider whether Delbert acted reasonably when rushing to attend to his injured child. EMERGENCY WILL BE OCNSIDERED AS PART OF CIRCUMSTANCES EXAMPLE: If Dorkus is driving while distracted and has to veer his car into Pompador’s Jaguar in order to avoid hitting a child, he cannot claim emergency because he created the situation. Unreasonable conduct c.

Analysis of the breach is: Failure to act as a reasonably prudent person:

(1) (2) (3) EXAMPLE: Dunco is a trolley company and decides to build one using uninsulated wires. Putnick is walking across the bridge carrying a metal pole and the pole makes contact with the wires, shocking him. Must use above considerations to determine whether standard of care was met. Personal injury forseeable π (4)

Custom evidence (a)

Deviation favors π .


Compliance favors defendant. EXAMPLE: Π could put on evidence that most trolley lines insulate their wires. This is helpful evidence in proving negligence if it is well-established custom designed to prevent shocks from the uninsulated wires.


Children A. The reasonable person standard specifically takes account of age when defendant is a minor. Cannot use same judgment as adults. i. Majority of jurisdictions: 1. A minors ∆s conduct is assessed according to what a reasonable child of the same age, education, intelligence, and experience would have done 2. Subjective: Looking at child ∆ ( intelligence, age, personal experience) 3. Objective: Compare to other reasonable children of same age experience & intelligence ii. Minority of jurisdictions: 1. Age 6 and below B. EXCEPTION: i. If child is not behaving as a child and neggedi n adult activity or Inherently dangerous activity treat child as adult EXAMPLE: 11-year-old Darla is driving her parents’ car and collides and injures Pava, when Pava sues Darla, because she was driving a car which is an adult activity and an inherently dangerous activity, Darla does not get the child standard and will be held to the standard of the reasonably prudent person.


Statutory and Negligence Per Se A. A statute that provides for civil liability supersedes the common law of torts. EXAMPLE: If a state legislature passes a law that says “anyone who is injured in an automobile accident and was not wearing their seatbelt cannot recover in tort,” a π cannot recover in a negligence action if she was not wearing a seatbelt.

B. Negligence per se: i. When determining whether the statute should apply, a judge considers: 1. Is π in class statute designed to protect 2. Was statute designed to protect against type of harm suffered by π EXAMPLE: Legislature in the state of Panic passes a law that says “anyone driving after sundown without headlights is guilty of an infraction punishable by up to a $1,000 fine.” This is a criminal law. Dana is driving after dusk without headlights and cannot see Trachsel crossing the street and she runs over and injures him. Trachsel sues Dana in negligence and would prefer that the judge use the statute to set the standard of care because it limits the jury role. Stat sets standard of care Duty was she driving after dusk w/o headlights 3. In a majority of jurisdictions, this means that an unexcused violation conclusively establishes that defendant breached his duty to π . 4. Minority jurisdictions regard a qualifying violation of statute by defendant as either raising a rebuttable presumption or as prima facie evidence that defendant’s conduct breached the duty to π . ii. When the statute does not apply 1. Statute will not be used to set the standard of care but the case proceeds under reasonable and prudent person standard of care. EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences between their property and neighboring property, failure to do so results in a fine up to $1,000. Dunn railroad constructs a flimsy fence between their land and Pierre’s. Railroad workers mow the lawn next to the fence, and on the other side of the fence is Pierre’s cow. Cow knocks the fence over and eats herself to death on the cut grass. Statute is not designed to protect cows from overeating and will not apply. Π does not lose stat will not be used to set standard of care but case will proceed under reasonable prudent person 2. Situations in which the statute standard will not apply: a. Would have resulted in a harm greater than the harm produced by the violations; OR b. Would have been impossible EXAMPLE: Diva injures Pavarotti in a collision. Pavarotti wants to show that Diva was driving with an expired license and use the statute as a standard of care. Court will require Pavarotti to show that Diva was driving unreasonably. VIII.

Professionals A. For lawyers, doctors, accountants and architects, courts will defer to the profession: B. Medical Malpractice: (1)

Custom establishes standard of care As long as doctor has complied with custom


Specialists: National focus


General practitioners: Same or similar locality

EXAMPLE: Dr. Doze is an anesthesiologist and administers anesthesia to Pedric. After two hours, Pedric gets up and then falls and suffers injury. Sues Dr. for medical malpractice. Evidence shows other anesthesiologists allow patients to rest for four hours, not two hours after anesthesia. This evidence shows deviation from custom, Dr. will lose.

If Dr. can shows that two hours are customary, Pedric loses since Dr. has complied with custom. C. Lack of informed consent: ( Form of Malpractice) i. Π is suing because he was not informed ii. Traditionally, doctors must divulge those risks that are customarily divulged. iii. Standard of materiality: 1. Requiring doctors to disclose ALL material risks 2. Reasonable patient would want to know In deciding whether to undergo a specific procedure HYPOTHETICAL Pexta decides to let Dr. Dial perform a nose job for cosmetic reasons. Although Dr. Dial does nothing wrong in the surgery, Pexta loses her sense of smell as a result of the surgery. Losing sense of smell is an inherent risk of the surgery. Pexta sues Dr. Dial for malpractice, claiming that he should have divulged the risk. Doctors in good standing do not customarily divulge this risk, although it is a material risk of nose jobs. Was Dr. Dial obligated to divulge this risk in a professional rule jurisdiction? In a patient rule jurisdiction? Bad result where there’s an inherent risk NEVER ESTABLISHES MALPRACTICE For her to recover it would have to rely on lack of Informed consent Traditional Rule : Doctor dial Is not liable because doctors customarily do not divulge the risk And complying with custom means there’s no malpractice Trend(Materiality) Patient Rule Is 5% chance of losing sense of smell material risk would patient want to know

D. Rules for medical malpractice apply to architects, accountants and lawyers i. In order to prevail in a legal malpractice action, π must show:

1. If it had not been for lawyers malpractice she would have prevailed In an underlying action

Breach of Duty (OL II. C.) 1.

Π ’s burden: Has to show prima facie by preponderance ofevidence


Just the happening of a bad result doesn’t establish any sort of unreasonable conduct on the part of the defendant.

When analyzing. Identify specific alleged unreasonable conduct. (1) 3.

If you cannot, there are special hurdles to deal with.

Two types of evidence to show breach of duty. a.

Direct evidence: Rare: Eye witness, video tape of accident.


Circumstantial evidence: Evidence form which one could reasonably draw a rational inference EXAMPLE: Father bakes a cherry pie and leaves it in the kitchen to cool. An hour later, a large chunk is missing. He sees his daughter’s T-shirt, lips and teeth covered in red. This is circumstantial evidence that daughter ate the cherry pie.

Slip-and-fall cases (first type) (a)

For π to recover: Must show that ∆ was neg for failing to discover & remedy the dangerous ocndition EXAMPLE: Pru is shopping at a market when she falls on grapes and breaks her leg. Only proof is the injury. No evidence from which the jury can find unreasonable conduct on the part of the market. If the grapes are blackened, she will get to the jury because the condition of the grapes are circumstantial evidence that the grapes were there long enough that the market should have discovered them and remedied the condition.

Res ipsa loquitur (“the thing speaks for itself”) (2nd type) (a)

Π meets his burden of proving breach of duty by establishing that the ∆ conduct fails to conform to the applicable standard of care.

When cannot figure out what ∆ did , things are falling out the sky (RIL)


Π needs to show: 1)

The event caused the π's Injury was one which would not ordinarily occur in the absence of negligence


IT Is more likely than not that it was the def's neg that was responsible for the injury-causing event. ∆ had control


π did not contribute

EXAMPLE: Parm is watching DunCo’s livestock auction when a steer falls through the ceiling and into his lap. Sues DunCo for negligence, DunCo says that there is no proof of negligence on their part. Under res ipsa loquitur, jury can infer breach of duty if Parm can prove his portion. Steer falling is result of neg Dunco owns warehouse they are responsible Jury may infer breach of duty (c)

Exclusive control is not required anymore: Just needs to show that probably the ∆ is responsible party EXAMPLE: Trax goes to 7-11 and buys chewing tobacco manufactured by DrumBeat. When he opens the tin, he finds a decomposed human toe. Trax sues DrumBeat for negligence. He cannot show what DrumBeat did wrong, but can assert res ipsa loquitur.


Can be used in the context of medical malpractice. 1)

Common Knowledge Exception:

(e) Multiple defendants: 1)

Where they are acting as group Medical team

2) EXAMPLE: Π goes in for an appendectomy and comes out suffering an injury to his right shoulder. Several people worked on π while unconscious. Probably the result of medical malpractice, but couldn’t show who or what injured him. IN ORDER TO GET EVIDENCE CAN HOLD ALL ∆ JOINTLY AND SEVERABLY LIABLE UNLESS THEY CANSHOW THEY DIDN’T SHOW THE HARM. EXAMPLE: Π walking down the street past an apartment building and gets hit in the head by a flowerpot. He cannot sue all 30 tenants of the building because they are not acting as a group.


Jury can draw an inference of a breach of duty.

RIL:Only applies in the context of the tort of negligence and only to proving the element of breach of duty.

wrong answer UNLESS proving element of BREACH for NEGLIGENCE HYPOTHETICAL Pashra is injured when a side of beef falls from the sky and hits her on the head. All Pashra can show is that she was walking by DunCo’s Meat Storage Warehouse when this occurred. Can Pashra maintain an action against DunCo? What did Dunco do? Theres no specific unreasonable conduct Beef falling is sign of negligence Walking by dunco meat storage warehouse dunco probably was In control pashra was just walking not contributing to her Injury

Cause-in-fact (Actual Cause) (OL II. D.)Causation Single Cause But-for


Multiple Causes Substantial factor

Alternative Liabilty Theory


Element of cause-in-fact ties def's breach of duty to π's Injury w/o this π loses claim

EXAMPLE: Jurisdiction has a law that all motorists must honk horns when they are driving on curvy roads to alert oncoming traffic. If Dweezel is driving in violation of that statute, he would be negligent per se when he collides into and injures Harve. Facts show that Harve is driving his brand new car with a state of the art sound system and he is playing Metallica as loud as possible. Even though Harve might be able to establish the duty owed to him was breached, he might lost his negligence claim because to establish causation, the general test if “but for.” But for Dweezel’s failure to honk, more likely than not, Harve would not have been injured. It is likely that Harve would not have heard the honk anyway. No causal link. But for his failure to honk horn more likely than not harve would have been Injured a.

Π only has to show:

More likely than not "but for" nge would have been Injured EXAMPLE: Rochester mixed potable water line with sewage line. The line that has the drinking water is called the Hemlock line, sewage line is called the Holly line. Stubbs contracts typhoid. City says there are 20 ways to get typhoid. As long as the π can show that it is more likely than not that the city was responsible, he has established cause in fact. If the jury says there is a 75% chance the City is liable, the π will still get all of his damages. But for test single causes 2.

Four areas where cause-in-fact issues arise a.

Multiple causes (1)

Multiple defendants, defendant and act of nature etc.


Substantial factor test:

Was neg. of ∆ at issue EXAMPLE: Landlord failed to provide hot water. Π heats water on the stove and carries it to the bath. Child runs out and causes him to spill it on himself. Both landlord and child would be but-for causes. (a)

Must use where:

EXAMPLE: Abel negligently sets a fire. It by itself would burn down Parthenon’s mansion worth $1M. Xena also sets a fire that would by itself burn down the mansion. They combine and destroy the house. If Parthenon sues Abel, he cannot show but for his fire, his house would not have been destroyed because Xena’s fire would have done the same. Must use substantial factor test. (b)

On MBE unless told otherwise assume joint and several liability: 1)


Loss of chance (1)

Traditional application

Paulina will lose even if he did deviate from custom, but canot show morel ikely than not doctor malpractice she would have lived Tested rarely typically medical malpractice cases EXAMPLE: Paulina goes to see Doctor. Doctor commits malpractice and fails to diagnose cancer. If Doctor had made a timely diagnosis, there would have been a 40% chance that Paulina could survive but by the time it is discovered, it is incurable. Paulina sues Doctor. Paulina will lose because she cannot show more likely than not but for Doctor’s malpractice she would have survived. Already had a 60% chance of death. (2)

Many jurisdictions recharacterize the injury: (a)


Plaintif needs to show but for his malpractice she would have loss 40% chnce of survival. She will not be treated as she will recover

Alternative liability theory (Summers v. Tice) * most likely to be tested* EXAMPLE: Tice and Simonson are hunting when they hear a rattling of the bush. They both shoot in the direction of the bush and end up shooting Summers. Only one of the two hunters is responsible for the harm but Summers cannot show who it is. Cannot use but for or substantial factor test. Its 50/50 cannot meet preponderance threshold (1)


Factors for application: (a)

Small number of ∆s


Each of whom is negligent


All before the court( Have been sued)

If factors met burden shifts to ∆ that they were not the cause

IF ∆ cannot show that the were not the cause they are jointly and severable liable


Market share liability: *not tested heavily* (1)

Generic product(DES cases) cannot show whichh of a large group of ∆ is responsible for the harm. Can sue all who might have cause harm in proportion to their market share


Court uses several liability: EXAMPLE: Company A had 10% of relevant market, will pay 10% of the π ’s damages unless it can show that it could not have made the product that caused the π ’s harm.

F. Proximate (Legal) Cause (OL II. E.) In adition to being cause-In-fact of π's harm, the ∆s conduct must also be a proximate , or legal cause of injury 3 Contexts in which they arise Unforeseeable extent of harm 1.

Unforeseeable type of harm

Unforeseeable manner of harm

Unforeseeable extent of harm: a.

If ∆ conduct is substantial factor In bringing about harm, he fact that the ∆ neither foresaw nor should have foreseen the extent of harm does not prevent him from being liable EXAMPLE: Della is driving negligently and collides with and totals Pompadour’s Jaguar. Defendant says most people drive old Toyotas worth $15,000. She will pay $15,000, not $100,000 suffered. This will not hold.


Eggshell Skull Rule: ∆ liable for full consequences of π's injury. Take your victim as you find them

EXAMPLE: If Porter had a predisposition for brittle bone disease and Duane collides with him. Normally $100 worth of harm, but Porter suffers $100,000 worth of harm. Duane is on the hook for the full extent of the injury. 2.

Unforeseeable type of harm a.

Use a rule of foreseeability or the risk rule:

Look at what makes ∆ conduct unreasonable and then ask is the injury suffered by plaintiff the type of harm that would be suffered by negligent conduct EXAMPLE: Dom negligently leaves a jar of rat poison next to the stove with all of the other spices. Prissy is using the stove and the heat from the stove interacts with the rat poison in a way that the jar heats up and becomes a missile. Smashes into chandelier, breaking it and causing $20,000 worth of damage. Dom’s lawyer could argue that even though Dom owed a duty to Prissy, and that he acted unreasonably, this is not the foreseeable type of injury. The foreseeable injury would be ingesting the rat poison. Someone may eat the rat poison thinking it’s a spice 3.

Unforeseeable manner of harm *most tsted*

The manner that the harm came about is so unforseeable a.

Superseding Cause: breaks the chain of causation


Culpability: The more cupable it is the more likely it is to be superseding EXAMPLE: Dora negligently fails to provide adequate locks on the front door of the apartment building. Pav is injured when he is mugged in the laundry room. Sues Dora claiming she owed him a duty. Even though there was intervening criminal conduct, it will not be superseding because the harm was foreseeable based on the risk of the defendant.

EXAMPLE: DunCo is a construction company. In violation of statute, they have a worksite that does not have a barricade or flaggers to control traffic in the area. Probably negligent per se because Parker, a worker, is injured by a car that ends up on the worksite. The facts show that the car is being driven by Xena, who is the ex-wife of Parker. She intentionally runs him over. Type of harm you can foresee is a car driving onto the site, injuring the worker. DunCo would successfully argue that they were not the proximate cause because Xena is a superseding cause. NOT FORESEEABLE THAT AN X-WIFE WOULD KILL HIM HOWEVER, IN ACTUAL CASE XENA FIALED TO TAKE MEDICINE AND RUNS OVER PARKER

EXAMPLE: Parker is taken to the hospital, goes into surgery and because Doctor commits malpractice, he suffers an extra $100,000 worth of harm. Doctor is liable, both DunCo and Xena are both causes-infact. Will be liable as proximate cause. c.

Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability. (1)

Look for passage of time the longer time has gone by the more likely liabilty wil be cut off. EXAMPLE: If Doctor decides to intentionally chop of Parker’s leg when he is in surgery following the accident, DunCo and Xena will not be liable. Too freakish, unexpected and bizarre, and will cut off liability.

HYPOTHETICAL Dana negligently operates her auto and strikes Porter, injuring him. Porter, whose leg is broken from the accident, is taken to a nearby hospital. While he is being treated for his broken leg, there is an earthquake that causes the roof to collapse. A section of the roof strikes Porter on the head, causing a concussion. Is Dana liable for Porter’s head injury?

We don’t know in this hypohetical.



Typical Examples


Chain of proximate causation unbroken; original defendant remains liable.

Chain of proximate causation broken; original defendant’s liability cut off for consequences of antecedent conduct.

Subsequent medical malpractice, including aggravation of π ’s condition.

Criminal acts and intentional torts or torts of third parties, but only where they are unforeseeable under the facts or circumstances.

Subsequent disease or accident, including all illnesses and injuries resulting from π ’s weakened condition, but not deadly, rare diseases.

Highly extraordinary harm arising from defendant’s conduct, as viewed by the court, including grossly negligent conduct of third parties.

Negligent rescue efforts.

Unforeseeable acts of God.

Damages (OL II. F.) I. A π must affirmatively prove ACTUAL DAMAGES. Nominal damages are not available , and punitive damages are NOT allowed. a.

There must be a cognizable injury. (1) (2) EXAMPLE: Vet negligently neuters a dog against the π ’s wishes. Court will not allow the π to recover because this is not a cognizable injury. The π was not planning to breed or show the dog, so the π suffered no injury.


Compensatory damages a.

Designed to return π ot pre-injury position



Three rules: (1)

They have to be foreseeable the type of damage has to be


Reasonably certain: cannot be speculative


Damages are not unavoidable

Two categories (1)

Special damages:

Easier to measure, more tangible. Medical expenses, lost wages, destruction of π's car, ect. Π entitled to recover for special damages for past, present, and future special damages Reduce future damages for present value EXAMPLE: If a four-year-old child is injured in a way that will not allow them to work ever again, we must speculate as to what his lost wages would have been for the rest of his life.


Collateral Source Rule: Unless told otherwise it applies on MBE

Payments made to or benefits conferred on the injured party from other sources (insurance policy, union,..ect) are not credited against tortfeasor liability, even where they cover all or part of the harm for which ∆ is liable. Applies to gratuitous services (free nursing care) π entitled to recover services even if they wee provided for free (2)

General damages: Pain and suffereing. Π is entitled


Avoidable Consequences Rule (to be discussed in more detail under “Defenses”): Π must take reasonable steps in order to mitigate damages


Punitive Damages *NC DISTINCTION* a.

Never recoverable just for negligent conduct. Defendant has to be more culpable than negligent. (1)


willful, wanton, malicious

Often called exemplary damages. (1)


Wealth of defendant is highly relevant. (1)

Due process clause limits amount of punitive damage awards if they are more than 10% of compensatory damages



Question 3

Frank received a new snowmobile for Christmas. The first week of January, a snow storm drops a foot of new snow in the mountains. Frank decides to take his new snowmobile out for a spin. He is moving much too fast when he comes over a rise and sees another snowmobile directly in front of him. He swerves to avoid the other snowmobile but loses control. His snowmobile crashes into the other snowmobile. Fortunately, Hans, the driver of the other snowmobile, is not injured, but his snowmobile has been rendered inoperable. Frank’s snowmobile still runs, so he goes for help while Hans stays behind with his damaged snowmobile. While Hans waits for Frank to return, a large branch of a nearby tree snaps under the weight of the heavy, new snow. The branch falls and hits Hans, causing Hans to break his collar-bone and left arm. If Hans sues Frank for these injuries, Frank’s best defense would be A) that he was not negligent. B) that Hans was negligent in standing near a tree with snow-laden branches. C) that the falling tree branch was an intervening and superseding force. D) that his negligent conduct was not the actual cause of Hans’s injuries.

A: Not best choice Is WRONG based on facts. He Is negligent because he was moving too fast B: Not unreasonable to stand by tree no evidence to suggest it is C: Correct : discusses proximate cause issue D: There is causation


Question 4

In order to facilitate street cleaning, the Metropolis city council passed an ordinance barring motorized vehicles from driving through the city center from 5 a.m. to 6 a.m. on Tuesdays. One Tuesday, the defendant, who is a resident of another city, was speeding through the Metropolis city center at 5:30 a.m., when he hit a pedestrian. The defendant did not know about the ordinance. The pedestrian has sued the defendant on a negligence cause of action. What is the most likely result? A) The pedestrian will prevail, because the defendant violated the ordinance by driving through the city center at 5:30 a.m. on a Tuesday. B) The pedestrian will prevail, because the defendant failed to act reasonably under the circumstances. C) The pedestrian will not prevail, because the defendant did not know about the ordinance. D) The pedestrian will not prevail because the local ordinance will not establish the standard of care. Neg per se Doctrine A: Not Correct: for the stat ot apply the π has to bei nprotected class & right type of harm B: CORRECT: Stat will not set standard care not harm its designed ot protect against so it defaults to reaosnably prudent person C: Irrelevant they are supposed to know the law D:No the harm

Defenses to NEgligence

Defenses to Negligence (OL II. G.) Contributory Negligence I.

Comparative Negligence

Assumption of risk

Contributory Negligence and Comparative Fault a.

Defendant has the burden of proof to show that:

Π was the harm of plaintiffs harm b.

The determination the legal effect of the π ’s contributory negligence depends on the jurisdiction. (1) (a)

Under contributory negligence: Any fault on part of π is a bar to recovery EXAMPLE: If Perfection was deemed 1% at fault and Diablo 99% of fault and Perfection sues Diablo, under contributory negligence, the fact that Perfection was 1% at fault would bar recovery.


Comparative fault reduces the π ’s recovery. 1)

Pure comparative fault: ALWAYS APPLIES ON MBE The π is allowed to recover no matter how much at fault he is but his recovery is reduced by his fault Joint & several liability

EXAMPLE: If π is 80% at fault and suffers $100,000 worth of damages, π will recover $20,000 from negligent defendant. 2)

Modified comparative fault: Where he π is at much or more at fault than the π is not entitled to recovery EXAMPLE: If π is 60% at fault, they will be barred from recovery. If π is 40% at fault, the π would recover 60% of her damages.



The last clear chance doctrine is generally going to be the wrong answer. Onlt applies I ncontext of contributory negligence.

Comparative Fault:

Joint & severa liability survives. If there are multiple ∆ each of who injure the ∆ and the π is also negligent. Subract π’s fault and that π can sue on ∆


Assumption of Risk


Express assumption of the risk arises where: Where π through written or oral relieves ∆ of responsibility to be non-negligent. (snow boarding, white water rafting) Only applies to negligence (1) Void against public policy when dealing with a necessity.

HYPOTHETICAL As a condition of entry to ski at Dun’s Ski Lodge, Mary signs a waiver stating that she will relieve Dun of negligence liability. Marion Dun, in a moment of spite, sprays down a section of snow to make it icy while performing her duties as a slope groomer, notwithstanding her supervisor’s repeated warnings to her not to do so. Mary slips on the ice and breaks her leg. Has she assumed the risk of her injury? Π would be entitled to recovery because the conduct of ∆ is more than just negligent. Defenses only apply to negligence “moment of spite” goes beyond negligence If assumption of risk applies than π gets nothing


Π may also impliedly assume the risk.

Based on plaintiff conduct (1)

Π is barred from recovery or recovery is reduced under the assumption of the risk doctrine if defendant establishes that: (a)

Knowledge of danger


Appreciation of danger


Voluntarily subjected to danger EXAMPLE: Plato gets in the car with Dickens. Dickens smells of alcohol and there is tequila in the car. Dickens crashes the car and Plato is injured. Dickens can argue that Plato elected to get into a car with a drunk driver and assumed the risk.


Assumption of the risk is a subjective focus while contributory negligence and comparative fault is an objective focus. EXAMPLE: Both Dickens and Plato are intoxicated. This would be relevant to Plato’s assumption of the risk. There would be no assumption of the risk, but there would be comparative fault.

There would be cont neg and comp fault. Because the reasonably prudent person would be deemed sober d.

Professional rescuers (Firefighter Rule):

Where the π prof rescuer is injured in doing her job due to inherent risk of that job she will not recover in neg

against the person who created the need for her to do her job

EXAMPLE: Dorkus is smoking in bed and falls asleep and his house catches on fire. Francine Firefighter suffers smoke inhalation when fighting the fire and sues Dorkus for negligence. Under the rule, she will not be allowed to recover because she assumed the risk since it is part of her job. e.

Primary assumption of the risk: Courts hold that in contexts ∆ has no obligation ot act non-neg towad π

EXAMPLE: Paxton decides to play basketball and gets tripped and injured by Duncan. If Paxton sues Duncan, under primary assumption of the risk, courts would say that an inherent risk is that another player might be negligent. In agreeing to play, you have relieved Duncan of the duty to be non-negligent. If ∆ Is more than neg (intentional or reckless) than π can recover 3.

Avoidable consequences: a.

π has obligation to take reasonable steps after injury not to increase injury EXAMPLE: Drew negligently injures Polly, causing $10,000 worth of damages but Polly refuses to seek medical help and her damages go from $10,000 to $100,000, Drew can say he does not owe the extra $90,000.


Often arises where:


Question 5

Crossing a busy street at night, a walker failed to look before crossing and failed to use a clearly marked crosswalk 50 feet away. The place where the walker crossed should have been brightly lit, but it was dark. The local county, where the walker was crossing, negligently failed to replace a street light despite several notifications from local citizens. While crossing, the walker was struck by a driver, who was exceeding the speed limit. The walker sued the driver and the county in the state of X, where the accident occurred. The state of X has a pure comparative negligence statute and provides both for joint and several liability of joint tortfeasors and for contribution among joint tortfeasors based upon comparative fault. The jury has determined that the walker suffered $200,000 in damages. It also determined that the walker was 40 percent at fault, the county was 10 percent at fault, and the driver was 50 percent at fault. What is the amount of damages for which the county is liable? A) Nothing, because the walker was more negligent than the county. B) $20,000, because the county was 10 percent negligent. C) $120,000, but the county can collect $100,000 from the driver if it pays the entire amount. D) $120,000, but the county can collect $60,000 from the driver if it pays the entire amount. Damages reduced by π fault 200k x .40 120k Π can sue 1 ∆ and recover all the remaining amount county can if it wants seek contribution from driver


Question 6

One winter morning, Jan needed to get to the airport, so she called a cab. Due to the ice on the roads, traffic was terrible. With less than an hour before her flight, Jan offered Carl the cab driver an additional $50 if he would “find some way to speed up and get her to the airport.” Carl began to weave in and out of traffic. Carl lost control of the cab and crashed into another car. Dan, a pedestrian, saw the accident and attempted to help. As Dan was attempting to help Carl out of the cab, Dan slipped and broke his leg. Did Carl owe Dan a duty of care? A) Yes, Dan, as a rescuer was owed an independent duty of care. B) Yes, because it was foreseeable that Dan could be injured. C) No, because Dan assumed the risk of injury when he attempted the rescue. D) No, because Dan’s negligence will bar his claim. DANGER INVITES RESCUE. GOOD SAMARATIN SHOULD RECOVER FOR HARM SUFFERED FORM NEGLIGENT PARTY DUTY OWEED TO RESCUE C & D WRONG: NOT GOING TO FIND GOOD DEED DOERS OF ASSUMING RISK NOT NEG ON PART OF PAT

III. STRICT LIABILITY Possession of animals A.

Abnormally dangerous actives

Products liability

Definition (OL III. A.) Π can recover absent proof of fault


Categories (OL III. B.) 1.

Possession of animals a.

Wild Animal Rule:

If ∆ keeps wild animal & the π is injured because animal does something that is characteristic of animal keeper of animal is strictly liale EXAMPLE: Damian has a pet tiger. Has always been gentle, but Paxton is visiting and the tiger bites off his hand. No matter how unforeseeable, Damian is liable. b.

Domestic Pet Rule:

Absent a a statute imposing strict liability. C/L the keeper of domesticated pet is not liable unless keeper knows or should know of the animals dangerous propensities


Abnormally dangerous activities a.

An activity is abnormally dangerous when: There is an inevitable high risk of serious harm Not a common activity EXAMPLE: Blasting or dynamite, crop dusting, transporting toxic waste, fumigating.


Π can recover when: ∆ was involved in one of the abnormally dangerous activites ∆ caused the π ‘s harm (1)

Proximate cause issue:

Intervening forces that superceed to cut of liability. The π has to be injured by risk that makes activity abnormally dangerous. EXAMPLE: Nemo is blasting and the noise freaks out the minks on Pierre’s mink farm to the point that the mother minks start to eat their kittens. Pierre is upset and sues Nemo and says strict liability. Although Nemo was blasting, this is dangerous because it causes debris and destruction, not because it causes minks to eat their kittens. Not abnormally dangerous. Pierre can only recover upon proof of fault.

HYPOTHETICAL Dinah Mite, an explosives dealer, accidentally drops a pallet of boxes containing explosives on Patella, breaking her leg and pinning her to the ground. Accident investigators on the scene later that day are injured when one of the destabilized explosives detonates. Is Dinah potentially subject to strict liability for Patella’s injury? For the accident investigators? Patella Cannot recover. Explosives explode not that they drop n her leg. Patella can recover upon proof of fault. The investigators can recover because the explosives exploded. Might be a question of assumption of risk

3. Products liability

C. Defenses (OL III. C.)


Contributory Negligence a.

MBE Rule: Where ∆ is strictly liable the π conduct( contributory or comparative) is not a defense. EXCEPTION: The only thing that is a defense is when π assumes the risk

EXAMPLE: Parm is driving on the highway and he is listening to the radio when he sees a sign that says “Danger: Blasting—Turn off your radio” that Dynaco had posted. Parm did not turn off his radio. There is an explosion and he sues Dynaco in strict liability. They can assert a defense that he knew of the danger. If Parm were speeding and did not see the sign, he gets full recovery. UNBER MBE RULE IF PARM WAS SPEEDING AND DID NOT SEE SIGN HE GTS FULL REOVERY BECAUSE HE DID NOT ASUSME RISK AND DID NOT KNOW OF DANGER, COMPRHEND O, OR EXPOSE HIMSELF HE JUST ACTED UNREAOSNABLY AND WOULD OCNSITUTE A DEFEMSE FOR ABNORMALLY DNGEROUS ACTIVIES

Products liability NOTE

This is not the name of a tort, but an area of tort liability where the π is injured due to product related harm. Legal theories: negligence, breach of warranty, strict products liability.

A. Strict Products Liability in Tort (OL IV. A.)*Tested MOST* 1.

Focus is on: Condition of the product. NOT the conduct of the ∆ but the condition of product ∆ put in market


There are eight elements of strict products liability. a.

Proper π (1)

Any user, consumer, by stander suffering physical injury. No requirement of purchase, privity, or contractual relationship. EXAMPLE: Arlene buys a chainsaw manufactured by DiceCo. Arlene lends it to her neighbor Brian. He lends it to Placido. Placido suffers injury due to a defect. As a user, Placido can sue DiceCo in strict products liability. If his wife is injured as a bystander, she can sue DiceCo as well.


Proper Defendant *most tested aspect of strict liability* (1)

Any one who is in marketing chain and in business of dealing with product. (a)

This includes: Manufacturer, wholesaler, retailer, ect


This does not include: Occasional seller EXAMPLE: If Duncan sells a chainsaw at a garage sale and Placido is injured, Duncan cannot be sued.

Not in business of dealing with those goods. c.

Proper Context for Strict Products Liability (1)

Providers of service are not held strictly liable for injuries received by customers


When there is both a service and a product:

If product predominates strict liability can be brought by π. If service predominates π has to prove fault and strict liability to does not apply EXAMPLE: Prudence goes into defendant’s beauty salon and wants a perm. Valente chooses a perm manufactured by DunCo and applies it to Prudence. Prudence goes bald and sues Valente in strict liability. Court says that the product predominates and Valente can be a proper defendant in strict products liability. Different from a dentist using a defective needle to administer Novocain. Product predominates valente can be proper ∆ Service predominates because dentist takes sskill and needle is secondary


Defect *most important* (1)

Almost all jurisdictions impose strict liability where a product is “in a defective condition unreasonably dangerous.” (a)

Formulations of liability occur under three categories of defects: 1)

Manufacturing Defect a)

Product comes out in condition not intended by manufacturer EXAMPLE: Toe in the chewing tobacco.


Π must show that: The product is more dangerous than ordinary consumer would expect when using its in intended manner Not in condition of intended by manufacture Defect existed at time ∆ put product in marketing chain


Design defects a)

Entire product line is claimed to be defective. Comes out as manufacturer intended but π claims that design is defective EXAMPLE: Ford Pinto. Due to the placement of the gas tank, it would explode upon minor collision. Ford designed the car this way, but it was still faulty.


Ordinary Consumer Expectation Test:

Π can argues that product is more dangerous than consumer would expect when using it in its intended manner EXAMPLE: Π is injured when he is at his workplace using safety goggles. The goggles only protect the front, but not the side. Π is welding and a piece of metal flies into his eye. Sues for a design defect, saying that it should have protected the side. Π loses under this approach. Ordinary consumer would not expect side protection. c)

Risk-Utility Balancing Test: Plaintiff can show product is defective by showing the risk of the product as designed is greater than the utility of the product as designed i)

A product’s design is usually defective under this test if:

EXAMPLE: Death Trap Motors decides to market a car called the Stallion. Designed to be lightweight and fuel efficient and places the gas tank in a location, encased in light metal. Pon buys a Stallion and is driving when he is rear-ended at 5 mph. Stallion explodes and Pon is severely injured. Proper defendant, π , product. Riskutility balancing—must show risk of placing gas tank outweighs utility and that there is some reasonable alternative design. Pon user of product, Death trap made care, dealing with car(product), def(ALL stallions had gas tanks) design defect, is it more dangerous than consumer expect ( no expection of kind of metal), Pon would haveto show the risk by placing gas tank whre it was in that type of metal outweighs the utility of placing gas tank iusing that type fo metal and would haveto show an alternative design.

Death trap could assert the beefit to fuel efficiency and benefit migh outweigh the risk. Jury would have to decide d)

Some products are exempt from being found defective in design under strict products liability under Comment K:(402(20a Some products have extraordinary social utility and no alternatives. Some jx, All prescription drugs are exempt unless manufactured differently EXAMPLES: Vaccines, prescription drugs


Absence of Warnings(warning defects) a)

A π is asserting either: i)

Adequacy of warning b. Does reasonably inform reader of significant risks b. Language, placement size of font

EXAMPLE: DunCo manufactures rat poison and it puts on the product a skull and crossbones and it says “Danger—Keep Out of Reach of Children.” Child thinks it is pirate food, eats it and dies. Warning could be made better. Trying to keep children away ii)

Lack of warning b. Manufacturer has to warn of risks it knows or should know b. gravity and probability of harm. EXAMPLE: Rat Probe Inc. makes an OTC weight loss medication called Weight-Off. Plashawn is shopping at Target, buys it, uses it and suffers a stroke. There is a risk of stroke in people with high blood pressure who use this product. Can sue Rat Probe and Target if he can show that Rat Probe knew or should have known that there was this risk. In people who have high blood pressure who use their product.


Cause-in-Fact (1)


But for defect π wouldn’t have been injured. To the extent market share liability arises

Proximate Cause (1)

Look for supeceeding causes, such as 3rd party discovering the defect EXAMPLE: Manufacturer mixes gasoline and kerosene and sells to a pharmacy. Pharmacy discovers the mixture and calls the manufacturer and alerts them. Parmette comes in and buys the mixture. She is injured and sues the manufacturer. The pharmacy’s act is superseding cause.

Conduct of pharmacy knowing defect and selling is unforeseeable where it would constitute proximate casue (2)

Learned Intermediary Doctrine:

In manufacturer provides warning to doctor that manufacture can expect that warning will be passed to patient and if dotor does not than dotor is superseeedingi cause


Damages (1)

May be recovered when: Personal injury And property other than product itself


Where the harm is only to the product itself:

Onlyy claim available to π is breach of warranty. Cannot pursue neg claim or liability claim where harm is to the product itself

HYPOTHETICAL DunCo sells a defective truck to Paco. Because of the defect, one morning, Paco cannot get the truck to start and thus is unable to make his scheduled deliveries, causing him to lose $10,000. May Paco pursue a strict product liability action? No, there may be diesgn or manufacturing defect. He cannot bring action because only harm is to the product itself with subsequent economic loses. Only remebdy is through contrat. Breach of warranty. If truck sarted sparking and caused $50 of burn damge o garage paco can bring ation in negligence, strict products liability and warranty. Because he OTHE damage to other than product itself


defenses (1)

Misuse (a)

Π uses product I manner hati s neither intended nor foreseeable. Plaintiffi snot entitled to recover dmages due to misues EXAMPLE: Parva stands on a chair manufactured by DunCo to reach a pot in her kitchen. The chair collapses under her. While sitting is the intended use of a chair, it is foreseeable that a person would stand on a chair, and thus, there is no misuse. A foreeseeabe use maybe not an ineneded use isto stand on it EXAMPLE: Π contracts a rash after Jello wrestling and sues. Wrestling in Jello is not the intended use of the product, Misuse, product not defective, no recovery.





3rd pary unforeseeably changes product usually employers remove safety devices from machine there is no liabily

Assumption of the Risk (a)

Π wrongful conduct that contributes along with defective product , to his own injury reduces recovery.

EXAMPLE: Dumont manufactures a TV. Pan is watching TV and it is the final moments of the final episode of American Idol. Pan sees that the TV is smoking and sparking, but refuses to turn it off. TV explodes and burns a carpet and the sofa. Pan sues, Dumont can assert assumption of risk. If he did not see the smoke and sparks, no assumption of risk.

No assumption risk he is entitled to full recovery if he did not see the smoke

B. Product Liability on a Negligence Theory (OL IV. B.) 2nd cause of action 1.

Any foreseeable π is entitled to bring an action. No contractual relationship needed


Analyze the conduct of each defendant and ask whether it was reasonable. a.

Differentiate from strict products liability, which considers the product rather than the person.

Focus on conduct and ask if it was reasonable 3.

Res ipsa loquitur takes the place of a manufacturing defect in negligence theory.


Negligence defenses apply. Assumption of risk

∆ acted unreasonably ALWAYS wrong answer under strict liability. C.

Products Liability on a Warranty Theory (OL IV. C.) 3rd claim breach of warranty 1.

An express warranty exists where: The ∆ makes specific representation as to quality of a product that becomes basis of bargain. EXAMPLE: At a garage sale, Duma tells Xaviera that the knife she is buying is rust-proof. It ends up rusting and her husband is injured. He can sue Duma for breach of express warranty.


An implied warranty a.


Warranty of Merchantability (1)

Applies ot merchants. I nany transaction of goods the merchants sttes its fit for its intended use


There are privity and notice requirements.


Can be disclaimed.

Where the harm is to the product itself, the only claim a π can pursue is a claim for breach of warranty.

Defenses (p. 329)


Question 7

A-One Bicycles has been making the best bicycles around for three generations. Mitchell, the grandson of the founder of A-One, takes great pride in the quality of A-One’s bicycles. Mitchell personally supervises the assembly line eight hours a day to ensure quality, so that he can maintain his reputation in the industry. Despite Mitchell’s careful inspections, Mitchell is unaware that the bicycle seats that he gets from Bike Components Unlimited are having problems. They fall off when anyone over 150 pounds sits on them. A-One sells its bicycles through the retailer, Bike Mart, among others. Phister buys an A-One bike from his local Bike Mart. Phister takes the bike out for a spin, and as he makes his first turn onto a busy street, the seat falls off. Phister falls in front of oncoming traffic and is severely injured. Phister sues Bike Mart and A-One in strict product liability. Which of the following is true? A) Phister cannot recover against Bike Mart, because it sold the bike exactly as it received it. B) Phister should not prevail against A-One, because it exercised due care and the faulty bike seat was Bike Components’ fault. C) Phister should prevail against A-One, regardless of whether A-One or Bike Components introduced the defect. D) Phister should not prevail against Bike Mart but should prevail against A-One, because A-One manufactured the bicycle. Anythign that talks about reasonableness is wrong (B) neg language C: Anyone who is part of the marketing chain is a proper ∆


Question 8

Marlin owns a ranch on which he takes care of animals that have been retired from show business. Ranch residents include a lion, a tiger, and two brown bears. Marlin attempts to provide the appropriate habitat for each type of animal, much like a zoo. One day, to his dismay, he discovers that the brown bears have somehow managed to escape. Marlin immediately begins telephoning the owners of the properties adjoining his ranch to warn them about the escaped bears. The first neighbor he calls is Potter, who owns a ranch directly to the west of Marlin’s. Potter keeps bees on his land to produce honey. His beehives are some distance from his house but visible from his kitchen window. While Potter is speaking to Marlin, he chances to look out the window just in time to see two bears flattening his prized beehives. After a slight pause, he says, “Uh, Marlin, I know where your bears are.” If Potter sues Marlin for the damage to his beehives caused by the bears, he will most likely A) prevail, but only if Potter did not provoke the bears in any way. B) prevail, if Marlin failed to exercise the appropriate standard of care in confining the bears. C) prevail under a theory of strict liability. D) prevail if he can demonstrate that he was not negligent in the maintenance of his beehives.



Types of Nuisance 1. Public Nuisance a.

A public nuisance is: Unreasonable interference with the health, safety, and moral of the community


Typically brought by a government actor such as an Attorney General. (1)

To recover damages in an individual action for a public nuisance: If suffered a type of injury distinct from what the public suffers EXAMPLE: Disney is going to place a billboard on a country street. The sign has bright lights and plays the song “It’s a Small World” over and over. Creates a huge traffic problem. This would be a public nuisance.

EXAMPLE: Panda runs a nursing home and those who live there cannot sleep due to the constant music.

2. Private Nuisance * tested more* a.

A private nuisance is: Substantial and unreasonable interference of π use and enjoyment of land.


Mental state: Usually intentional conduct EXAMPLE: DunCo owns a feedlot in the desert that smells. On certain days, the wind will blow the smell towards a housing community that was constructed nearby. Petasha, who lives there, is revolted and asks DunCo to do something about it. If DunCo doesn’t shut down the feedlot, they are engaging in intentional conduct. Is nuisance

IS substantial unreasonable interference  If π is irrantiaonly sensitive there will not be a nuisance c.

There are five factors to consider when determining whether a nuisance is a substantial and unreasonable interference. (1)

Value of ∆ activity




Nature of locality


Extent of π’s injury


Who was there first

EXAMPLE: DunCo’s feedlot was there first. How valued is their activity? Where else can they go, how can they minimize the harm? How significant is the injury? 3.

Remedies a.

Injunction (1)


To get an injunction, the π must persuade a judge that: (a)

That she is suffering or will suffer irreparable harm


That damages are an adequate remedy

A judge must do a balancing of the equities to determine whether the π is entitled to equitable relief.


For a defamation action: (OL VI. A.) A. There is false reputation harm causing speech. Tsted along with invasion of privacy usually In analyzing an action for defamation, one must check for: (OL VI. A.)

1. Defamatory message II.

A message is defamatory if it: A. Lowers a π in the esteem of the community or discourages 3rd persons from associating with him. EXAMPLE: Accusing someone of a heinous crime or of cheating on an exam. C. The statement must be one which can be believed to be truthful and reputation-harming. 1.

If its hyperbole


Pure opinion is not defamatory

EXAMPLE: Law school paper says that the food in the student center has gone from bad to worse. This is opinion and cannot be defamatory. If it says that it believes that week-old vegetables are used in the food, even though it is couched in opinion language, it can be proven true or false. D. Must be defamatory in the eyes of a reputable group. EXAMPLE: If the Nazi party paper publishes an article that says Prussia thinks that Hitler was a horrible person and Prussia is a proud neo-Nazi, the court will not uphold this as defamation.

2. Pleading problems 1. Where the π is not named, they must allege that it is of or concerning her. EXAMPLE: Law school paper publishes an article saying that the female torts professor has been arrested for bank robbery. Professor Padding can sue that it is of and concerning her because she is the only female torts professor and people will associate her with the statement. 2. A large group cannot be defamed. (usually over 20 too big) EXAMPLE: Article is published saying that today’s lawyers are unethical, greedy swine, there can be no defamation claim. a. In a small group, every member can bring a claim. EXAMPLE: If an article says that one of the surviving Beatles has been arrested for dealing crack cocaine, Paul and Ringo can both bring an action for defamation. 3. Some statements may not be defamatory on its face. EXAMPLE: Acme Law School dean is marrying Jane Doe. This is not defamatory on its face, but other facts may make it so, such as the dean already being married.

3. Publication*Tested a lot because answer cannot be intuited*

1. Publication means: a. Someone other than the π read , saw, heard the defamation 2. Π must show: a. The ∆ either intentionally publish info or was negligent as to pblication

HYPOTHETICAL Dina sends a sealed letter to Paykta, accusing her of plotting a murder. The letter is opened by Paykta’s new, very nosy roommate. The following week, Dina sends a postcard to Paykta containing the same accusation. Will Paykta be successful in a defamation action for the letter? for the postcard? No publication. Dina was not negligent nor did she intend for someone other than π to read letter. Sealed letter  it was unforeseeable that nosey roommate would open letter. Pakta cannot recover damages When dina sends the postcard ther IS publication she may not have intended someone other than π she was negligent in creating the risk that someone other than π would read the postcard

3. Republication Rule: a. Anyone who repeats defamation becomes republished and potentially liable for defamation

4. Type of defamation and damages 1. Libel definition: a. C/L any communication that has permanence writing, sculpture, photograph b. Traditional rule Reputational harm is presumed and damages do not have to be proved. 2. Slander definition: a. Oral defamation/Spoken. C/L spoken defamation was less harmful b. For π s to recover for defamation: 1. Have to prove special damages specific economic losses that flow from defamation c. Exceptions are called slander per se: Does not have to prove special damages and treat it as libel 1. States π is unfit to perform in his trade or profession 2. Crime of moral turpitude 3. Falsely stating someone has a current loathsome disease 4. Lack of chastity in a woman

5. Common law Privileges 1. Truth a. Historically:Falsity was presumed and truth was a defense b. Today:Π has to prove falsity as part of prima facie case 2. Absolute Privilege a. If applies ∆ is not liable for defamation no matter how bad ∆ is. Canno be loss even if motive was bad by ∆ b. Contexts in which absolute privilege applies: i. communication between spouses ii. statements on floor of legislature iii. high ranking executive officials iv. Statements in Judicial proceedings EXAMPLE: Congressman Doofus stands up on the floor of the legislature and says “people, like my opponent in my last race, who are child molesters should be in jail.” Absolute privilege applies, no liability.

EXAMPLE: On cross-examination of a witness, attorney asks the witness if they are still a member of the Nazi party. Absolute privilege applies, no liability. c. Privilege ends if someone repeats the defamatory statement in a non-privileged situation. i. Doofus goes to office and calls someone then the absolute privilege will not apply 3. Qualified Privilege a. Defendant loses an otherwise available qualified privilege if: i. Bad intent ii. Knows info is false iii. Reckless in truth of falsity b. Gives greater leeway to speech, but qualified because they can be lost. EXAMPLE: If X gets a call about a job reference for student A, but X gives a horrible recommendation because he is thinking of student B. A sues X for defamation. Qualified privilege applies because the information is of interest to a third person, but the privilege is lost if X is negligent or reckless as to the truth of the information or if the information is published.

6. Constitutional Issues 1st amend issues of free speech 1.Prior to 1964, there was no First Amendment issue defamation and defamation was a strict liability tort. 2.Since NY Times v. Sullivan, four questions are considered: When dealing with public officials a. What’s the status of π ( public official, figure, private b. Subject matter (public concern or private concern) c. Damages π seeks d. Status of ∆ 3.Public official: Defamation related to π in their capacity ∆ knew info was false or recklessly disregarded truth or falsity Clear and convincing evidence of actual malice

HYPOTHETICAL The Daily falsely states in an article that Mayor Pacher has been embezzling funds. They based this on a source they had used before, who had proved to be reliable. Will Pacher be able to recover for defamation? No because there is no evidencethat ∆ entertained doubts as to truth or falsity did not question nor did they know it was false. His conduct may have been negligent but is NOT actual malice Cannot establish clear and convincing evidence of actual malice


Public figure: Treated as officials to recover: Clear and convincing evidence of actual malice (1)

All purpose public figures: Considered household names


Limited public figures: Inject themselves in a particular controversy and try to have some effect on outcome


Private figure: Look at subject matter. Form, content, and context. (1)

Public concern:

The more widely disseminated the information and to the degree there is a media ∆ more likely its public concern

Willing to prove reputational harm (actual damages) can setan standard of fault as long as it does not impose strict liability (a)

Presumed or punitive damages: Actual malice is required. Clear and convingng evidene of actual malice


Private concern: Only shared with private people. Π does not haveto prove actual malice to get punitive damages. Actual malice is not constitutionally required

VII. INVASION OF PRIVACY A. Intrusion into Seclusion (OL VII. A.) 1.

∆ intentionally interferes with plaintiff zone of privacy a.

Does not require any publication of information.


Invasion must be done in a way that is: Offensive to reasonable person EXAMPLE: Eavesdropping, wiretapping, stalking. Something visible in public is not a ground for intrusion.


Damages recoverable for invasion of seclusion include: Emotional distress punitive damages if an show ∆ is bad enough

B. Commercial Appropriation of Identity or Likeness (OL VII. B.) 1.

Unauthorized use of π’s identity or likeness for ∆ commercial advantage a.

The wrongful use of π ’s identity or likeness must be used: for profit and not a news worthy purpose EXAMPLE: Duncan is the editor of Sports Today magazine. Wants to publish an article about baseball star Paco and sends a writer to interview him. Takes a picture in which Paco is holding a can of Drek soda. Drek uses the picture to start an ad campaign. Paco sues Sports Today and Drek. Paco will lose against Sports Today but will win his suit against Drek.

C. Public Disclosure of Private True Facts (OL VII. C.) 1.

Π must prove four elements: a.



of Private facts


Disclosure of which is highly offensive to reasonable person


Not newsworhty


Look for the passage of time. Something in past, decades have past


Need some sort of publication or dissemination of information.


Injunction might be possible since the information is truthful. a.

Not granted to enjoin defamatory speech since it is false.


Constitutional issues: a.

If ∆ gets info from pub record cannot be liable

HYPOTHETICAL Paul, a highly respected Washington lawyer, is HIV-positive. Only a few family members know of his condition. In an effort to bring HIV-positive individuals to the public’s attention, his brother sends an e-mail to all of Paul’s colleagues revealing his HIV status. Does Paul have a cause of action against his brother? Ones medical information is considered highly private. Only issue they are no private facts since he shared with some members offmaily . Paul would prevail lsince only a FEW family members know this information

D. Portrayal in a False Light (OL VII. D.) 1.

Looks like defamation , but argument that communication is or shouldn’t be defamatory EXAMPLE: Stating falsely that someone has cancer or is poor.


Π has to show: a.



False information


Divulging info is highly offensive to reasonable person


Some level of fault (1)

Parallel to defamation rules.


Question 9

Gerry and Marcia were both trial attorneys, specializing in criminal defense. Both Gerry and Marcia attended the annual conference of the country’s largest association of criminal defense attorneys. The conference is held at different sites each year, and attorneys gather to discuss the latest developments in criminal law. Although Gerry and Marcia have never met, they are familiar with one another professionally. At a reception held during the conference, Gerry approached Marcia. Gerry said, “Marcia, I’ve admired your work for some time. I’m opening an office in your state. Perhaps we could pool our resources and become the most powerful attorneys in the state.” Marcia replied, “I will never work with you. You’re an unethical low-life.” Several other lawyers who happened to be nearby overheard Marcia’s reply. Will Gerry succeed in a defamation suit against Marcia? A) No, because there was no publication. B) No, because only Marcia and Gerry were parties to the conversation. C) Yes, if Marcia knew the comment would be overheard. D) Yes, if it was reasonably foreseeable that the comment would be overheard by someone. D: LAYS OUT PROPER RULE. IF SHE WAS NEGLIGENT


Question 10

The Gotham Daily Tattler, a tabloid newspaper, reported that Daniel Meld, a billionaire real estate developer and casino mogul who was considering running for President, had recently been treated for chronic alcoholism in an inpatient clinic affiliated with Gotham’s largest hospital. In fact, Meld had undergone a series of cosmetic procedures in order to enhance his chances of winning his party’s nomination and, ultimately, the presidency. Two days after the story broke, Senator John Blutarsky, the highest ranking elected official in Meld’s party, while engaged in a filibuster began reading the lead stories from newspapers all across the nation, including the Meld article from the Tattler. Blutarsky is an outspoken supporter of Meld’s main rival for the party’s nomination. What is the likely result if Meld sues Blutarsky for defamation? A) Blutarsky will win, if he reasonably relied on the newspaper article. B) Blutarsky will win, because he was privileged to make the statements. C) Meld will win, if can prove actual malice. D) Meld will win, because the statement was slander per se.

1st --> Prove clear & conving evidence of actual malice C: WRONG ANSWER

B: While its true π will have to prove actual malice. there is an absulte privlege becaue statement was made on floor of legislature


Malicious prosecution arises when: Arises when someone who is not part of the court system or law enforcement with improper motive or probable cause gets a criminal proceeding brought against π & π prevails on the merits . ∆ doesn’t have subjective belief in truth of what theyre claiming EXAMPLE: Dilbert is angry with ex-girlfriend Petunia. He reads about a bank robbery, calls the police and tells them that Petunia did it. If she is tried and acquitted, she can bring an action against Dilbert for malicious prosecution.

B. Wrongful Institution of Civil Proceedings (OL VIII. B.) 1.


Instead of criminal action a civil action is being instituted for improper motives and knowing there is no basis to do so

Abuse of Process (OL VIII. C.) 1.

Abuse of process exists where: ∆ intentionally misuses civil or crim process for ulterior motive that results in damage to π. Π does not have to prevail EXAMPLE: Dim attaches a piece of real property that belongs to Pushta. Claims he does it in order to preserve it in order to pay off a judgment. The real reason he does it is that he knows someone else wants to buy it, so he wants to pull it off the market.

IX. ECONOMIC TORTS A. Intentional Misrepresentation (Fraud) (OL IX. A.) 1.


Π must prove four elements: a.

Intentional material misrepresentation


of Past or present fact


made with scienter 


of which π justifiably relies

Generally an affirmative assertion of fact or an act of concealment. a.


Failure to disclose information is not a basis unless: (1)

Fiduciary relationship


∆ makes ambiguous or misleading statement that causes reliance


∆ makes stamtent believing true than learning its not


∆ makes statement not intending reliance but learns π is relying


if π reasonably expects there to be disclosure

Mental state: a. ∆ must intend that π rely b.

Scienter is present when: ∆ knows info is false or is reckless as to truth or falsity EXAMPLE: Dinah tells Porter that the corn that she is selling him is Grade A when it is Grade B. Porter sues for fraud. Clearly she intended him to rely, but if Dinah accidentally looked at the wrong invoice, he would lose his fraud claim because there is no scienter. She might be negligent.

B. Negligent Misrepresentation (OL IX. B.) 1.

General rule: ∆ has no duty to avoid the neg infliction or pure economic loss. If plaintiff injury is purely economic π cannot prevail in negligence claim EXAMPLE: DunCo deals with dangerous chemicals and starts a chemical fire. To prevent harm to businesses in the area, they notify π to evacuate. Π loses $1M in business because they had to be shut down. Π sues DunCo and loses. If the fire had damaged π ’s building, then they would be entitled to recover for economic losses that flow from that. PERSONAL INJURY OR PROPERTY DAMAGE


EXCEPTION: Where there is special relationship EXAMPLE: A lawyer prepares a contract for a client and drafts it negligently so that the client loses $1M and the client sues for malpractice, the lawyer cannot avoid liability because it is purely an economic loss. There is a fiduciary duty.

Accounting firm does its job negligently and misstates the value of the company that hires the accounting firm. If the hiring company suffers harm as a result, they can recover. 2.

Who beyond a party who is in privity of contract can recover? a.

If ∆ knows they are acting for benefit of 3rd party and 3rd party relies and suffers economic loss they can recover for economic losses EXAMPLE: If Xerox hires Deloitte to do an audit because Xerox wants to get a $10M loan to fund a new product line. Deloitte is negligent and overstates the value of Xerox. First National Bank, who lends Xerox $10M, wants to sue Deloitte when Xerox goes bankrupt. Because Deloitte knew they were auditing to benefit the banks in town and they could see the reliance, a duty is owed.


In the context of lawyer/client relationships: Non clients can recover. In the context of will drafting

C. Interference with Contractual Relations (OL IX. C.) 1.

Two elements: a.

∆ knows there is a contract between π and 3rd party


∆ acts with purpose to have K breached or harder to perform EXAMPLE: DinCo approaches Xavier Co. and says that they want a kind of widget. They knew that Xavier has a contract with Portie Co. to sell all of their widgets. DinCo says they will pay Xavier 3 times the amount Portie is paying and Xavier agrees. Portie will win if they sue DinCo.

D. Interference with Prospective Economic Advantage (OL IX. D.) 1.

This tort protects the probable “expectancy” interests of future contractual relations of a party.


Π can prevail only by showing that the defendant: a.

∆ knew of the prospective economic advantage


Acted to interfere with it for improper motives

3. Acting to protect competitive interest is fine because there’s no contract


Deena really wants to get a job as an associate at a large Washington law firm. From a friend of hers at the firm, Deena learns that her main competitor for the job is Paul. Concerned that Paul will beat her out for the job, Deena starts a rumor that Paul is unreliable and lied about being admitted to the bar. Paul does not get the job. Will he have a cause of action against Deena for interference with prospective advantage?

E. Injurious Falsehood (Trade Disparagement) (OL IX. E.) 1.

Π must prove: a.

False statement


Actual malice  knew statement was false or recklessly disregard truth or falsity


made to another


causing specific economic injury to π EXAMPLE: Owner of Music Company, Owen, is approached by Connie who asks if they have the Barry Manilow/Lady Gaga duets. Owen says no and Connie asks if Parker Records does. Owen knows that they do, but does not want to give them business and says no. If Parker finds out, they could recover for injurious falsehood.

They lost business. ∆ knew state was false

X. MISCELLANEOUS TORT CONCEPTS A. Vicarious Liability (OL X. A.) 1.

Employer/Employee (Respondeat Superior) a.

employer held vicariously liable because employee tortious conduct within scope of employment EXAMPLE: Vinny is driving a van for Domino’s. Drives negligently and collides with Palethia. Vinny is negligent in scope of employment and Palethia can sue Domino’s. By virtue of being an employer, they are vicariously liable.


Employers can seek indemnity from employee but rarely do so.


Employers can be directly liable if they are negligent in hiring. EXAMPLE: If Domino’s hired Vinny when they knew that he was a bad driver or failed to do adequate background checks, they will be directly liable.


Intentional torts committed by an employee: Are outsideof scope of employment and eployern ot vicariously liable (1)

EXCEPTION: Employee believes acting to benefit employer EXAMPLE: Bouncer at a bar commits a battery when ejecting an unruly patron. Bar owner could be vicariously liable even though it was an intentional tort.


Independent Contractor a.

the person who hires IC is NOT VICARIOUSLY LIABLE for negligence of IC


Whether a person is an independent contractor rather than an employee depends on:

employer dictates meas method and manner. The more control exercised by person who hires them, when, where, giving tools. More likely that person is employee. The less control exercise, uses own tools, makes own schedule then negligence does NOT lead to vicarious liability of employer 3.

Parent/Child a. Not vicariously liable of torts of their children absent statutebut can be negligent supervision or negligent entrustment

B. Abatement/Survival of Action and Wrongful Death (OL X. C.) 1.

Common law: a.


If π died during lawsuit the action died with them

Survival Statutes: a.


Wrongful Death Statutes: a.


Allow statutory heirs (sib, parent, children) to bring action for wrongful death for THEIR OWN injury

Loss of Consortium: a.

Tortfeasor has seriously injured a spouse the other spouse may bring a claim for loss of consortium EXAMPLE: Deirdre is driving negligently and she hits and severely injures Poindexter. He is in great pain, is in the hospital for six months and then dies from the injuries. He has a wife and minor child. Once Poindexter has died, the estate can continue his claim through a survival statute. His wife can bring an action for loss of consortium for the six months he was in the hospital. Once he dies, his wife and child can both bring a claim for wrongful death, suing for own injuries suffered.

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