Intentional Torts:

General Observations

• ∏'s "super-sensitivities" are not to be taken into account unless Δ knew of them in advance
• Everybody can be liable for intentional torts
  • Lack of capacity to have intent doesn't matter
• A person "intends" consequence of her actions if:
  • It was her purpose to bring about consequence OR
  • She does not wish or desire for particular result, but knows to a degree of substantial certainty that the consequence would result
• Transferred Intent: Intent can transfer from:
  • Intended to actual victim
  • Intended to actual tort

Intentional Torts:

Battery

• Prima Facie Case:
  • (1) Harmful or offensive contact AND
    • "Offensive": unpermitted; to avg person
  • (2) With ∏'s person
    • "∏'s person": anything physically connected with ∏ (e.g. holding bat; inside car)

Intentional Torts:

Assault

• Prima Facie Case:
  • (1) Reasonable apprehension AND
    • Not fear/intimidation
    • Apparent Ability creates reas. app.
      • TIP: "A/A" will never be in the correct answer--but "reas. app" will (because that's what A/A creates!)
  • (2) Of an immediate contact
    • Words alone not enough
    • Words + Conduct can be enough though
      • Unless the words undo the conduct
• TIP: If battery and assault both work on the same fact pattern, choose battery (on MBE).

Intentional Torts:

False Imprisonment

• Prima Facie Case
  • (1) Sufficient act of restraint AND
    • Threats are enough
    • Inaction is enough if understanding that Δ would act for ∏'s benefit
    • ∏ generally must be aware of confinement as it's happening/taking place
    • Length of time is irrelevant
  • (2) To a bounded area
    • Mere inconvenience is not enough
    • Not bounded if there is a reasonable means of escape of which ∏ is aware

Intentional Torts:

Intentional Infliction of Emotional Distress

• Prima Facie Case:
• (1) Outrageous conduct AND
  • Insulting language is not enough unless:
    
    • Continuous conduct (is there a pattern?)
    • Type of ∏ (kids/elderly/pregnant?)
    • Type of Δ (was ∏ passenger/guest of common-carrier/innkeeper?)
• (2) Damage (sig & sub. emotional harm) AND
• (3) Intent (recklessness will suffice)
  • Transferred intent is normally unavailable
• TIP: IIED is fallback position when other torts won't work! (most heavily tested int/tort on MBE)

Intentional Torts to Property:

Trespass to Land

• Prima Facie Case:
  • (1) An act of physical invasion AND
    • Doesn't matter if Δ had knowledge or not
    • Propelling physical object onto prop works
    • Sound, light ≠ work (sue for nuisance!)
  • (2) Land
    
    • Includes airspace above/subsurface below so long as at a distance where L/O could make reasonable use of the space

Intentional Torts to Property:

Trespass to Chattels

• Prima Facie Case:
  • (1) Any act by Δ that interferes w/ ∏'s right of possession in a chattel; AND
    • Intermeddling: directly damage chattel
    • Dispossession: deprive right of possession
  • (2) Intent to do the act that brings about the interference AND
    
    • Intent to trespass not required
    • Mistake is no defense
  • (3) Causation AND
  • (4) Actual damages
    
    • Needs to be at least to a possessory right
    • Recovery of actual damages from harm to chattel or loss of use (if dispossession, damages based on rental value)

Intentional Torts to Property:

Conversion

• Prima Facie Case:
  • Any act by Δ that interferes w/ ∏'s right of possession in a chattel AND
    • Includes: wrongful acquisition; wrongful transfer; wrongful detention; sub. changing/damaging/misusing chattel
    • Only tangible personal property and intangibles that have been reduced to physical form are subject to conversion
  • Intent to do the act that brings about the interference AND
    
    • Mistake is no defense
    • Intent to trespass not required
  • Causation AND
  • Actual damages
    • Interference so serious enough in nature/consequences to warrant that Δ pays chattel's full value
      
    • ∏ may recover damages (FMV at time of conversion) or possession (replevin)

*∏ can be anyone w/ poss. or immediate right to poss.

Intentional Torts to Property:

Differences Between

Trespass to Chattels and Conversion

• Act: Ttc less serious than conversion
  • TtC: intermeddling or dispossession
  • Conversion: serious enough in nature or conseq.
• Damage: Potential remedies:
  
  • TtC: actual damages to chattel or loss of use
  • Conversion: FMV@time converted or replevin
• TIP: if some damage → TtC
         if lot of damage → conversion
• TIP: for conversion, damage includes serious interference w/ possessory rights

Defenses to Intentional Torts:

Consent

• Δ must show 2 things:
  
  • (1) ∏ had capacity to consent AND
    
    • Those who lack capacity: children; mentally-impaired; coerced/forced; fraudulently-induced/mistaken
  • (2) ∏ gave consent
    
    • Express
      • TIP: look for facts relating to fraud, mistake, or coercion → no consent
    • Implied: arises through custom and usage or through ∏'s own conduct
      • Reasonable person standard
        
• TIP: Also aff/defense to defamation & invasion of privacy as well as to intentional torts

Defenses to Intentional Torts:

Self-Defense

• A person is justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.
• Reasonable Belief: use Reasonable Person Standard
• Reasonable Force:use only degree of force reasonably necessary to avoid threatened harm
  • Use of deadly force is reasonable only when defender reasonably believe that she is facing a deadly force herself
    • Modern Rule: must retreat unless in home

Defenses to Intentional Torts:

Defense of Others

• A person may defend another person in the same manner and under the same conditions as the person attacked would be entitled.
• Mistaken Belief: Defender not liable if he reasonably believed that another person was endangered
  • Traditionally, mistaken belief wouldn't work if against police officers

Defenses to Intentional Torts:

Defense of Property

• Person may use reasonable force to defend his real or personal property.
• Deadly force may never be used to defend property
• Hot Pursuit: can only use reasonable force to recover or recapture your own property in situations where you're in hot pursuit of the person who took it
• Shoplifter: can detain in reasonable manner for reasonable amount of time
• TIP: Don't confused defense of property with self-defense or defense of others!

Defenses to Intentional Torts:

Necessity

• Public Necessity: unlimited and unqualified privilege to protect a lot of people (to prevent public harm)
• Private Necessity: qualified privilege to protect a limited number of people (herself or handful of others)
• TIP: only used in conjunction with intentional torts to property!

Defenses to Intentional Torts:

Discipline

• Parent (or teacher) can use reasonable force when disciplining children
• Take into account common-sense factors such as:
  • Child's age
  • Nature of his/her activity
• TIP: Rarely shows up on MBE!

Defamation:

Prima Facie Case

(Common Law Elements)

• Prima Facie Case:
  • Defamatory statement that turns out to be false
    
  • Of and concerning the ∏
  • Statement is published to a 3P (publication) AND
  • Resulting damages to the ∏

Defamation:

Prima Facie Case

(Defamatory Statement)

• A defamatory statement is one that injures or is detrimental the ∏'s reputation, i.e., detracts from ∏'s reputation for honesty, integrity or morality so as to lower ∏ in estimation of her community
• Truth: defense at CL; Δ bears burden of proof

Defamation:

Prima Facie Case

(Of and Concerning)

• Δ's statement must reasonably be understood to refer (or attach) to the ∏ in particular

Defamation:

Prima Facie Case

(Publication)

• Statement must be communicated to a 3P
• 3P must be capable of understanding the statement
• Publication must be at least negligent (if not intentional) on the part of the Δ
  • If Δ carefully tries to avoid publication, then he is probably insulated from defamation liability

Defamation:

Prima Facie Case

(Damages & Slander Per Se)

When defamation is spoken (slander): ∏ must prove special damages (e.g., $ damages tied to statement)

When defamation is written or broadcast (libel): juries may presume damages

Slander Per Se: ∏ can recover presumed damages if statement falls in any of the following categories:

• Impugns ∏'s trade or profession
• Accuses ∏ of serious crime (punishable by jail)
• Implies ∏ has "loathsome disease"
• Imputes unchastity to women (& men in some jxns)
  • Banned in some states

Defamation:

Defenses

(Truth)

• At common law, truth is an affirmative defense to defamation claims
• Δ bears the burden of proving truth

Defamation:

Defenses

(Absolute Privilege)

• Absolute Privilege applies when:
  • (1) Statement made in the course of judicial proceedings (lawyers, judges, witnesses, etc.)
  • (2) Statement made in the course of legislative proceedings or by executive branch officials w/in the scope of their duties
  • (3) Communications between spouses
• TIP: If absolute privilege applies, it applies no matter how bad Δ behaves--even if made intentionally, with malice, or in spite.

Defamation:

Defenses

(Qualified Privilege)

• Statement made during course of any legitimate public debate OR to serve the interest of the person receiving the information
• No Q/P if statement made intentionally or maliciously
  • If you abuse it, you lose it!
• TIP: Rarely shows up on MBE

Defamation:

Constitutional Limitations

• 1st Am. protects speech on matters of public concern
  • 2 additional elements must be met:
    • (5) ∏ must prove statement was false
      
      • Public/private person? doesn't matter
    • (6) ∏ must prove some level of fault
      
      • Public persons: actual malice
      • Private persons: at least negligence
• Actual malice: knowledge of falsity or reckless disregard for truth
• Public Officials: gov't; elected officials, candidates
• Public Figures: non-gov't; celebrities
• Damages: if public concern, all ∏s must prove actual malice to recover presumed or punitive damages

Invasion of Right to Privacy:

Appropriation

• Use of ∏'s name or picture for commercial advantage without permission.
• Limitation: ∏'s likeness must be used for advertising, promotional, or labeling purposes
  • Newsworthy uses don't count

Invasion of Right to Privacy:

Intrusion

• Interference with a ∏'s seclusion in a way that would be highly offensive to a reasonable person
• Don't need to go onto someone's property to be liable for intrusion!
• Limitation: ∏ must be in a place where she has an expectation of privacy
• TIP: Fallback position if intrusion won't work? Try IIED!

Invasion of Right to Privacy:

False Light

• The widespread dissemination of information that is in some way inaccurate and that would be highly offensive to a reasonable person.
  • Even if information is flattering!
• TIP: least tested on for MBE

Invasion of Right to Privacy:

Public Disclosure of Private Facts

• The widespread dissemination of factually acurate information that would normally be confidential, and the disclosure of which would be highly offensive to a reasonable person
• Newsworthy disclosures are not actionable

Invasion of Right to Privacy:

Defenses

• Consent: if you give permission, no CoA
• Absolute/Qualified Privileges: apply only to false light claims and public disclosure claims

Fraud:

Prima Facie Case

(Common Law Elements)

• Prima Facie Case:
  
  • Affirmative Misrepresentation;
  • Fault;
  • Intention to Induce Reliance;
  • Actual and Justifiable Reliance AND
  • Damages

Fraud:

Prima Facie Face

(Affirmative Misrepresentation)

• At CL, silence generally will not suffice
  • However, there may be statutory obligations or exceptions!

Fraud:

Prima Facie Case

(Fault)

• Scienter must be shown
  
  • Fraud is an intentional CoA!
  • Scienter: actual knowledge of falsity

Fraud:

Prima Facie Case

(Intention to Induce Reliance)

• The statement must be material to the subject matter at hand

Fraud:

Prima Facie Case

(Actual and Justifiable Reliance)

• It is normally justifiable to rely on the opinion of one who has superior skill or knowledge in the subject matter of the transaction

Fraud:

Prima Facie Case

(Damages)

• Must show genuine, out-of-pocket economic loss
  • Fraud is a "no harm, no foul" cause of action

Fraud:

Comparison with Negligent Misrepresentation

• Intent:
  
  • Negligent Misrep: negligently/carelessly
  • Fraud: intentionally
• Types of Δs:
  • Negligent Misrep: liability normally confined to commercial transaction (Δ always biz person!)
  • Fraud: no such limitation
• Types of ∏:
  • Negligent Misrep: liability normally confined to particular ∏ whose reliance is contemplated (who Δ knew would rely--need someone who the statement was directly made!)
  • Fraud: no such limitation

Intentional Interference With Business Relations:

Inducing Breach of Contract

use if there is a CONTRACT and a BREACH

• An intentional action that causes a 3P to breach an existing contract with the ∏
• Need:
  • an affirmative act
  • intent w/ respect to interference AND
  • resulting breach

Intentional Interference With Business Relations:

Interference With Contractual Relations

use if there is a CONTRACT but NO BREACH

• A Δ may be liable if interference with a ∏'s contractual relations makes performance more difficult, even if the interference does not actually cause a breach

Intentional Interference With Business Relations:

Interference With Prospective Economic Advantage

use if there is NO CONTRACT

• A Δ may be liable for interfering with a ∏'s expectation of economic benefit from 3Ps, even in the absence of a contract
• TIP: Interference w/ PEA causes of actions are hard to prove; in particular, remember that the law gives people the latitude to act in ways that protect their own economic interests
  • "Dont use X's cabs!" --> not okay
  • "Use our cabs!" --> okay

Wrongful Institution of Legal Proceedings:

Malicious Prosecution & Abuse of Process

• Malicious Prosecution: criminal proceedings (possibly civil in some states) brought against someone w/o probable cause or for an improper purpose
• Abuse of Process: a claim for using any form of legal process for an ulterior motive or an improper form
• Both are rarely tested on MBE

Negligence:

Duty

(To Whom Is Duty Owed?)

• You owe a duty to all people who are foreseeable victims of your failure to take precautions.
• Plaintiffs Who Are Foreseeable as a Matter of Law:
  • Rescuers
  • Viable Fetuses
    • Even if Δ didn't know ∏ was pregnant!

Negligence:

Duty

(Reasonably Prudent Person Standard)

• RPPS: You must exercise the amount of care that would be taken by a reasonably prudent person under the same or similar circumstances
• Δ expected to use superior skill/expertise for ∏'s benefit
• Δ's physical disabilities are attributed to the reasonably prudent person

Negligence:

Special Duty Standards

(Children)

• Majority (Modern) Rule: a child must exercise the degree of care that a reasonable child of like age, intelligence, and experience would exercise under the circumstances
  • Children under 5: usually incapable of negligence
• Minority (Traditional) Rule: "Rule of Sevens"
  • Children under 7: incapable of negligence
  • Children from 7-13: rebuttable presumption that child is incapable of negligence
  • Children 14+: rebuttable presumption that child is capable of negligence
• Adult Activities: if engaged in adult activity, held to adult RPPS

Negligence:

Special Duty Standards

(Professionals)

• General Standard: a professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing
  • Community-at-large sets standard
  • Usually need expert testimony (but not always)
  • TIP: Answer will say "ordinary member"--not "average member" or "median member"!
• Common Fact Patterns:
  • Medical Malpractice & Informed Consent:
    • If no consent whatsoever → battery
    • If no informed consent (as to risks and alternatives) → negligence
  • Legal Malpractice
    • ∏ must prove causation (that mistake caused damages and that she probably would've won)

Negligence:

Special Duty Standards

(Owners and Occupiers of Land--Generally)

• Determine source of injury: result from conduct of activity? Or from encounter w/ static condition?
• Determine type of ∏:
  • Undiscovered Trespasser: unlawful entry; L/O unaware of presence (U/Ts almost always lose)
  • Discovered Trespasser: unlawful entry; L/O aware of presence
  • Licensee: social guests, friends (people you Like)
  • Invitee: anyone who comes onto premises that are open to the public-at-large; usually a biz but not necessary

Negligence:

Special Duty Standards

(Duties Owed By Owners and Occupiers of Land)

Duties Owed As To Source of Injury & Type of ∏

• Undiscovered Trespasser
  • Activity: None
  • Condition: None
• Discovered Trespasser
  • Activity: Reasonable care
  • Condition: Artificial, highly dangerous, concealed conditions that L/O knows about
• Licensee
  • Activity: Reasonable care
  • Condition: Moderate-highly dangerous, concealed, artificial/natural conditions that L/O knows about
• Invitee:
  • Activity: Reasonable care
  • Condition: Concealed conditions that L/O knows about or could've known about via reasonable inspection
• L/O can satisfy legal obligation (regarding static conditions) by repairing or warning
• If question involves child trespasser, use RPPS
  • Attractive Nuisance: L/O aware that kids might be near land? Kid likely to appreciate danger?
• Entrant hurt by open and obvious condition = lose
• Minority jxns don't distinguish b/w licensee, invitee

Negligence:

Special Situations

(Statutory Standard of Care)

• Test: Class of Person, Class of Risk
  • Class of person: who is § protecting?
  • Class of risk: what type of risk is it preventing?
• If "negligence per se" is established, ∏ need only prove causation and damages.
• Exceptions:
  • Compliance w/ § is more dangerous than violating the statute
  • Compliance is impossible under circumstances

Negligence:

Special Situations

(Affirmative Duty to Act Rule)

• General Rule: No duty to rescue
• Exceptions:
  • Δ puts ∏ in peril
  • Strong relationship b/w parties
    • Close-family
    • Common-carrier/innkeeper
    • Inviter-invitee
  • Duty to Control 3Ps

Negligence:

Special Situations

(Negligent Infliction of Emotional Distress)

• Generally, no duty to avoid upsetting others
• In order to bring NIED claim, ∏ must prove:
  • Δ exposed her to physical risk AND
    
    • Physical risk: in zone of danger or bystander recovery (observation + close relationship)
  • ∏ later developed/suffered physical manifestations from the distress
    
    • Most, but not all require physical manifestations
  • Exception: Cts liberalize rules where Δ creates great likelihood of severe emotional distress
    • mishandling of relative's corpse
    • erroneous report of relative's death
    • MD incorrectly diag. Pt w/ fatal disease

Negligence:

Breach of Duty

• ∏ must point to specific conduct on the part of the Δ that violated his duty to ∏
• Evidence of Custom: always admissible, never conclusive
  • Point to typicality! ∏ shows everybody takes this precaution; Δ shows nobody does
• Res Ipsa Loquitur:
• (1) Event is one that does not normally occur in the absence of negligence (usually need expert)
• (2) Any negligence would be attributable to Δ
  • Had control/power over instrumentality
• If ∏ can prove RIL, gets case to the jury and is spared a directed verdict (doesn't mean he wins!)

Negligence:

Causation

(Cause in Fact)

• If single Δ: use "but for" test
• If multiple Δs and a commingled cause:
  • Use "substantial factor" test
• If multiple Δs and an unknown cause:
  • Use "burden shifting" to shift burden to Δs

Negligence:

Causation

(Proximate Cause)

• A person is only liable for those harms that are within the risk of his activity
  • Proximate cause is a limitation on Δ's liability
  • Match conduct with harm!
• Direct Cause: if result of Δ's negligent conduct is foreseeable, Δ will be liable
  • TIP: err on the side of finding for ∏ in direct cause fact patterns!
• Indirect Cause:
  • Foreseeable Result
    • Foreseeable Intervening Cause: ∏ wins
    • Unforeseeable Intervening Cause: depends
  • Unforeseeable Result
    • Foreseeable Intervening Cause: Δ wins
    • Unforeseeable Intervening Cause: depends

Negligence:

Causation

(Proximate Cause & Intervening Causes)

• Cases in which an intervening cause will almost never cut off liability (always "foreseeable")
  • Subsequent Medical Malpractice
  • Negligent Rescue
  • Reaction Forces
  • Subsequent Diseases or Accidents
• Cases in which an intervening cause will not cut off liability if Δ can anticipate the intervening cause
  • Negligence of a 3P
  • Criminal Conduct
  • Acts of God

Negligence:

Damages

• ∏ must prove damages as part of her prima facie negligence case
• The elements of a typical personal injury award:
  • Past and future medical expenses
  • Past and future lost income
  • Pain and suffering
• "Eggshell Skull" Plaintiff Rule: Δ is liable for the full extent of the damage he causes, even if the extent was unforeseeable
  • Δ takes ∏ as he finds hi

Defenses to Negligence:

Contributory Negligence

• Traditional CL defense (abolished in most states)
• ∏'s failure to use relevant degree of care for her own safety completely bars ∏ from recovery
  
  • Doctrine of Last Clear Chance: permits ∏ to recover, despite her negligence, if Δ had last clear chance to avoid the incident but failed to do so
    
• TIP: don't use RPPS in definition b/c that may not always be the applicable standard

Defenses to Negligence:

Assumption of the Risk

• Express Assumption: "I'll take my chances..."
  
  • E/A to receive Mx services? gen. unenforceable
  • E/A in recreational context? gen. enforceable
  • If proven, completely bars recovery
• Implied Assumption: need evidence proving that:
  • ∏ had knowledge of risk AND
  • Encounter w/ risky circumstance was voluntary
    • Absence of an alternative or emergency situations destroy voluntariness
  • If proven, completely bars recovery
    • However, some states have adopted comparative fault

Negligence:

Comparative Negligence

• Pure Comparative Fault (default): ∏ recovers even if he was 50% or more at fault
• Modified Comparative Fault: ∏'s recovery is proportionally reduced up to a certain threshold
  • Once reaches threshold → barred
  • Some jxns use 49%, others use 50%
• Where it exists, comparative negligence supplants all other affirmative defenses except for express assumption of risk

Strict Liability:

Animals

• Trespassing Animals: S/L for foreseeable harm caused by animals (other than household pets)
• Personal Injury:
  • Domesticated Animals: No S/L unless you know of the animal's dangerous propensities in advance
  • Wild Animals: S/L from the start

Strict Liability:

Abnormally Dangerous Activities

• Attributes:
  • Activity is incapable of being conducted except with high risks (always a residual risk of significant proportion)
  • If harm occurs, it is likely to be severe (promises grave disaster)
  • Activity must be uncommon or unusual in community where it takes place
• Any precautions taken by Δ are irrelevant!
• Limitation: harm still must be w/in the risk!

Strict Liability:

Product Related Injury

(Prima Facie Case)

Prima Facie Case:

• Δ must be a merchant-seller
  
  • Mfg/wholesaler/retailer of goods
  • No privity limitation: ∏ not required to deal directly w/ Δ
• Product must be defective
  • Mfg: difference b/w product in hand and all others is very difference that made product dangerous (product is an anomaly)
  • Design: problem common to each unit that seller could have eliminated through reasonable alternative design
    • Ask whether cost-effective!
• Defect existed when product left seller's hands
  • If product moved in ordinary channels of distribution → presumption that defect existed when left seller's hands
• ∏ made foreseeable use of product

***Warning: look carefully at what theory you're asked to apply--"negligence" or "S/L"?***

Strict Liability:

Product Related Injury

(Defenses)

• Traditional Jurisdictions:
  • Conduct equivalent to contributory negligence will not bar recovery
  • Conduct equivalent to assumption of the risk will bar recovery
  • TIP: not a defense to say ∏ was careless in way she handled product--must demonstrate that ∏ knew of product's hazards but foolishly encountered them nonetheless!
• Comparative Fault Jurisdictions:
  • Majority of C/F jxns now apply comparative fault principles in S/L cases

Strict Liability:

Product Related Injury

(General Tips)

• When theory is negligence, let wholesalers and retailers off the hook!
• An adequate warning usually insulates Δ from strict liability
• If see "feasible alternative", think design defect
• Foreseeable use ≠ Intended use
  • Don't let additional parties throw you off--if S/L is theory, it changes nothing
• If product use is incidental to performance of the service, S/L is unavailable
  • E.g. blood transfusion incidental to performance of Mx services--not a sale of product, but rather considered a service
    • ∏ must try negligence instead!

Strict Liability:

Private Nuisance

• Conduct that causes a substantial and unreasonable interference with the use and enjoyment of land
  • Substantial & Unreasonable Interference: use the reasonableness standard
• Remedies: Ct will weigh the equities of the parties in deciding whether to enjoin Δ's activity

Strict Liability:

Public Nuisance

• Conduct that causes physical or moral harm to the public in general
• A private ∏ can maintain a public nuisance action if she has suffered a type of harm that is different in nature than the general public-at-large

General Considerations:

Vicarious Liability

(Definition)

Vicarious liability applies when there is a sufficiently strong relationship between the passive and active parties to justify the shifting of liability to passive party.

General Considerations:

Vicarious Liability

(Employer-Employee)

• Employer is vicariously liable for employees' torts committed w/in the scope of employment
  • Frolic and Detour Rules:
    • If frolic (major departure from course of work) → V/L won't apply
    • If detour (minor departure from course of work) → V/L applies
• Employer not liable for employees' int/torts
  • Unless violence is part of the job!
• Independent Contractors: no V/L unless:
  • Engaged in inherently dangerous activity
  • Public policy exception
    • e.g., L/Os can't insulate themselves from liability to invitees on property for dangerous conditions created by I/Cs

General Considerations:

Vicarious Liability

(Automobile Owner-Automobile Driver)

• Generally, no V/L between owner and driver
• Minority Rules:
  • Family Car States: Owner is V/L for torts of any household member using car w/ permission
  • Permissive Use States: Owner is V/L for torts of anyone using car w/ permission
• TIP: if driver is performing an errand for owner, liability may be premised on agency principles!

***Warning: Look for direct liability first!***

General Considerations:

Vicarious Liability

(Parent-Child)

Parent cannot be V/L for torts of child

General Considerations:

Adjustment of Rights Between Multiple Defendants

(Joint & Several Liability)

• Each Δ can be liable to ∏ for the entire damage incurred
• When J&S Liability Applies:
  • Concert of Action: Δs acting in accordance w/ express or implied agreement
  • Indivisible Harm: single but indivisible harm caused by multiple, independent negligent acts or Δs

General Considerations:

Adjustment of Rights Between Multiple Defendants

(Indemnity)

• Passive Δ receives full reimbursement from active Δ
  • TIP: Can't apply both indemnity and contribution in the same fact pattern!

General Considerations:

Adjustment of Rights Between Multiple Defendants

(Contribution)

Traditional Rule: Paying Δ recovers proportional shares from other Δs

(Majority) Comparative Contribution: Recovery is based on the relative fault of each tortfeasor

TIP: Can't apply both indemnity and contribution in same fact pattern!

General Considerations:

Wrongful Death and Survival Actions

• Wrongful Death: brought by decedent's beneficiaries for their own loss of support and companionship that the deceased would have provided
  • Proceeds go to the estate (as a conduit)
  • Still subject to any defense that could have been raised against the deceased
• Survival: brought by decedent's estate based on claims that the deceased could have brought had she lived
  • Proceeds go to the estate (not as conduit)
• TIP: W/D and Survival are not separate CoA! They are labels that apply to tort actions when the tort results in the victim's death!

General Considerations:

Immunity

• Family Immunity: mostly abolished
• Gov't Immunity: Fed/state/local gov't typically has sovereign immunity against tort lawsuits
  • No immunity when gov't is engaged in proprietary function (function ordinarily carried out by a private party)
  • Gov'ts retain immunity when engaging in discretionary gov't activity involving traditional gov't functions
    • Unless waived by §
• Charitable Immunity: abolished in most states