Sufficient Act of Restraint in a Contained Area.  Must know of restraint or be injured by it.  NOT FI if knows of reasonable means of escape.  

A shopkeeper can keep someone who he has reason to believe stole, for a reasonable amount of time, by reasonable means.  

Outrageous conduct and actual damages.  

Extreme: shown by continuous nature of act, type of Plaintiff, type of Defendant( innkeepers, common carriers, etc.- only extends to passengers or guests).  

Physical injury not required but substantial emotional distress and a close relation required.  

Trespass to land

Negligent conduct that results in severe emotional distress.  Close relatives that perceived the injury or viewed very near in time.  Within zone of Defendant's negligent conduct (not WI- Andrews Palsgraf dissent- if unreasonable risk of harm, duty owed to world at large).  

Physical injury required for MBE, not for WI.  

Plaintiff must have capacity to give consent.  

Defendant must stay within boundaries of consent.  

Implied or expressed consent.  Implied by usage or custom and implied by law in emergencies.  If expressed, look for mistake, fraud, or coercion.  

Self-Defense

Force reasonably necessary to defend against tort of another- must be now occurring or about to.  Deadly force only if required to prevent harm.

No real duty to retreat, but should attempt if can do safely and not in home.   

Hot Pursuit Doctrine- if close enough in time after tort.  

To defend property- can never use force that is reasonably calculated to cause substantial bodily harm.  

Residence exception- can defend home, even by deadly force- but not to protect property- to protect life and limb.  

For property torts (trespass)

Public or Private necessity.  

If public, it is a benefit for many- privilege is absloute and no liability.  (I.E. Burning houses to save village, blowing dam to save orphanage).  

If private, liable for actual damage caused (tying boat up in a storm to someone else's dock- a trespass with a limited privilege).  

Defamation (libel, slander, slander per se)

Invasion of Right to Privacy

Misrepresentation

Negligent Misrepresentation

Interefence with Biz Relations (Tortious Interference)

1.  Defamatory statement of fact about P

2.  Publication (communicated to a 3rd party)

3.  Damage to reputation.

If first amendment applies (matter of public concern), must also have:

4.  Falsity

5.  Fault (either intentional, with reckless disregard to truth "Malice", or negligence)

1) Consent

2) Truth (except 1st Amend, bc essential element)

3) Absolute or Qualified Privileges

Absloute- between spouses, Govt branches during official duties

Qualified-Society has an interest in encouraging this type of communication

Public figures- must show malice, intentional or reckless disregard for truth (NY Times v. Sullivan)

Private persons- only negligence, if can show malice, punitve damages may be available.  

Libel- written, damages presumed

Slander-spoken, not presumed

Slander Per Se- statements particularly devastating to reputation, damages presumed, examples of how:

1) If related to business or profession, 

2)Crime of moral terpitude

3) Loathsome disease 

4) "Whore" or unchastity to women

Invasion of Privacy

1.  Use of name or picture for commercial advantage related to goods or services

2.  Intruding into Plaintiff's Privacy or Seclusion (somewhere where P has a reasonable expectation of privacy)

3.  Putting P in a False Light

4.  Publication of Private Facts (that are true)

Absolute and Qualified Privileges for False Light and True Publication.  

TEST: Would a reasonable person object to the way in which they are portrayed.  

Misrepresentation

1.  Statement of fact (or opinion if P relying on person of special skill)

2.  Malice-knowing false of reckless disregard for truth.

3.  Intends that P relies on statement

4.  P justifiably relies on statement.  

5.  Causation.  

6.  Damages

Only in a commercial setting:

1.  Statement of fact

2.  Negligently asserting as true

3.  Intending reliance

4.  P justifiably relies

5.  Causation 

6. Damages

1.  Valid Relationship between P and 3rd Party (existing or prospective)

2.  Defendant knows of relationship

3.  Intentionally Interferes w/ Relationship

4.  Damages

Defenses

Privileged-Def's Persuasion Conduct is minimal

Competitors- if by commercially acceptable means (underbidding?)

Legal or Practical Duty- lawyer, family member, accountant

1.  Duty w/ a Standard of Care 

a.  Foreseeable Plaintiff

2.  Breach

3. Actual and Proximate Cause

4.  Damages

Reasonable Person Standard, unless Def knows of P's disability

Children- of like age, intelligence, experience, unless engaged in adult activity- like driving

Professional-of same or similar communities

Innkeeper/ Common Carrier- strict liability

Strict Liability- absolute liability

Statutory Standard- always overrules other standards.  

Invitee- duty to make safe, warn, about any conditions Def should know of with reasonable inspection (a duty of reasonable inspection imposed)

Licensee-warn, make safe unsafe conditions should know of (no duty to rzbl inspection)

Discovered Trespasser- duty to warn or make safe any artificial conditions that may cause serious injury

Unknown Trespasser- no duty

Attractive Nuisance- child didn't appreciate risk and was attracted to it- should have known of dangerous condition and expense to fix was slight compared to risk of injury

Open and Obvious Conditions- no duty

Affect of Statutory Standards

If person within class statute meant to protect, and kind of harm meant to protect, and person failed to meet standard= Negligence Per Se.  Presumption of Negligence (breach of duty and cause).  

If met standard, still can be negligence.  

There is NONE!  Unless owner/ occupier, business and invitee.  

1.  Right and ability to control- know or should know its required.  

2.  Assumption of duty by acting- duty to act reasonably.  

3.  Cause of harm- forced duty to provide care.  

A Probability/ Inference Test

1.  Wouldn't happen without negligence

2.  Def controlled instrument (exclusive control)

3.  No contributory negligence

Not an automatic win for P, but survives any directed verdict, proceeds to jury with inference of negligence to jury (who can accept or reject).  

But for test

Substantial Factor Test-where many actions led to injury, Def must have been substantial factor

Alternative Causes- where two acts, but only one causes injury, not known which- burden on Co-Defendants to prove who caused.  

Proximate Cause

(Legal Cause)

Test of Foreseeability

If the result of the negligent conduct was unforeseeable, let the Defendant GO.  

If result was foreseeable, Def is cause.  

Direct cause- uninterrupted chain of events between Def's action and injury.  

Indirect cause- between negligent act and injury was an intervening force.  

Always foreseeable intervening forces- rescuers, the like.  

If intervening force was an intentional tort or crime- no proximate cause, even if foreseeable.

Punitive if Wanton, Willful, Reckless, or Malicious.  

Duty to Mitigate, but Def liable for all $ regardless of sources of recovery for P.  

No interest, No Attorney's Fees.  

Contributory Negligence-(recklessness)

Assumption of the Risk-(Adventurousness),

Implied

Where P recklessly or unreasonably acts, causing injury- D's acts are irrelevant.  Complete Bar to Recovery.  

Not a defense when- P acted with malice, negligence per se, and strict liability

Assumption of Risk

Expressed and Implied

P knew of the risk

P voluntarily proceeded towards risk anyways.  

Can be contributorily negligent and assume risk at same time- "P unreasonably and voluntarily takes on a known risk."

Not available as a defense in comparative negligence systems.  

Defenses to Assumption of the Risk- No viable alternatives and emergencies (to help others and self)

Raised by P in response to Def's claim of contributory negligence.  

Not available in comparative negligence system, but affects fault %.  

Assigning damages based on a % of fault.  

In WI- if P is 51% at fault, no recovery.  

If multiple defendants, If P's fault is greater than all Def's, no recovery.  (cannot sum D's together)

I.E. P- 35%

D1-34%

D2-10%

D3-21%

Only Joint and Several Liability from  D that is 51% at fault or more.  Rest only pay their %.  

Strict Liability

Animals- only get strict liability if over-the-top dangerous, or an animal with known dangerous propensities.  

1.  Defect causing the injury existed at the time P takes control.  

2.  Workable theory- either negligence or strict liability.  

3.  Anyone who is within foreseeable zone of risk, including bystanders

4.  Manufacturers and sometimes Retailers/Wholesalers can be Defs.

Manufacturing- failed to perform as safely as ordinary product for ordinary uses

Design- could have designed safer

Warnings- inadequate warning of dangers not obvious to reasonable person- if can fix big risk for small amt of $, no warning is adequate.

Inspection-failed to reasonably inspect

Private- substantial, unreasonable interference with another's use and enjoyment of property.  Objective Standard- don't consider sensitive P

Severity of Interference must outweigh value of D's conduct.  

Public-unreasonable interference with health, safety, rights of community

**coming to nuisance not a defense unless P came specifically to sue.  

Employers liable for torts of agents when within the scope of employment.  Not liable for intentional torts of employee, unless:

1) Force authorized by employment

2) Friction generated by employment

3) Employee is trying to further biz interests.

Joint and Several Liability

Contribution

If Indivisible Injury, defendants will be liable for entire judgment amount.  

Contribution- where one party pays, can seek contribution from other liable parties

Can get everything back from other defendant, available when:

Other Def is a lot more responsible

Vicarious Liability

Strict Liability in Product Liability Cases.