Intentional Torts

Elements for Battery

1. Harmful or offensive conduct,
2. to Plaintiff's person,
3. Defendant's intent and
4. Causation 

In order to recover for battery, does the plaintiff need to be aware of the conduct when it occurs?

NO

Does battery require proof of actual harm?

NO, the plaintiff can recover nominal damages even though no actual damage occurred.

What are parasitic damages?

Added emotional distress element, when plaintiff is victim of tort that causes physical injury.

Can a plaintiff who suffers only economic loss without any related personal injury or property damage recover loss through negligence?

No, not without a non-economic loss accompanying it.

TO make the person whole, as if the injury never occured.

What are the typical categories for personal injury damages?

1. Medical and rehabilitative expenses, both past and future

2. Past and future pain and suffering (emotional distress); and 

3. Lost income, and any reduction in future earnings

What is the general rule, when P's real or personal property is injured or destroyed by D's tortious conduct?

P may recover the difference between the fair market value and the property immediately before the injury and immediately after the injury.

What is the collateral source rule, both traditional and modern?

Traditional: Benefits or payments provided to the plaintiff from outside sources (such as medical insurance) are not credited against the liability of any tortfeasors, evidence of payments is NOT admissible at trial

Modern: Majority of states have either eliminated or modified its application. Payments made to P by D's insurer are not payments from a collateral source, and are not credited against D's liability.

When is P entitled to punitive damages?

If P can establish by clear and convincing evidence that D acted willfully and wantonly, recklessly, or with malice.

Torts involving a malicious state of mind or outrageous conduct (IIED) often result in punitive damages for P.

Many states, determine punitive damages by statute.

What are the three types of cases where a D may breach the duty to avoid negligently inflicting emotional distress?

1. Negligent Infliction of Emotional Distress (NIED)

2. Wrongful-Death actions and survival actions

3. Recovery of loss Arising from Injury to Family Members

What does a P need to demonstrate to recovery for negligent infliction of emotional distress of a D whose tortious conduct placed the P in harm's way?

1. P was within the zone of danger of threatened physical impact -- that he feared for his own safety because of D's negligence; and

2. The threat of physical impact caused emotional distress

NIED: Bystander Recovery

When can a bystander P outside of the zone of danger recover for emotional distress?

1. If P is closely related to the person injured by the D

2. Was present at the scene of the injury; and

3. Personally observed (or perceived) the injury

What is the majority rule regarding NIED and physical symptoms?

The majority rule is that emotional distress must be manifested by physical symptoms.

Severity varies by jx

What is the general rule for Vicarious Liability via Respondeat Superior?

The employer is generally vicariously liable for the employee's torts if the employer has the right to control the activities of the employee.

Has to be within the scope of employment.

Explain the difference between a detour and a frolic.

Detour: minor and permissible deviation from the scope of employment

Frolic: unauthorized and substantial deviation

When are parent's liable for their own negligence with respect to their minor child's conduct?

1.  Has the ability to control the child; and

2. Knows or should know of the necessity and opportunity for exercising such control.

Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the P is subject to liability to the P, for what amount of what?

The entire harm

P can collect the entire judgment from another D, or portions from various Ds.

What is Indemnification?

The shifting of the entire loss from one joint tortfeasor to another party.

What defense to negligence occurs when a P fails to exercise reasonable care for her own safety and thereby contributes to her own injury?

Contributory Negligence

What are the two forms of comparative fault?

1. Pure comparative negligence: P's contributory negligence, is not a complete bar to recovery. P's full damages are reduced by the proportion that is P's fault.

2. Modified or partial comparative fault:

Modified or partial comparative fault

1. If P is less at fault than the D, P's recovery is reduced by his percentage of fault

2. If P and D are equally at fault, P recovers 50% of his total damages.

3. If P is more at fault than the D, P's recovery is barred (same as contributory negligence)

How does the Last Clear Chance rule work?

The P may mitigate the legal consequences of her own contributory negligence if she proves that the D had the last clear chance to avoid injuring the P but failed to do so.

This has been abolished in most comparative fault jx.

What involves companying the fault of the P with the fault of one of more Ds?

comparative fault

What involves comparing the degree of fault of co-defendants in an action or as the result of a motion by one co-defendant against another co-defendant?

Contribution: does not affect the liability of any D against the P

What involves how much the P will receive from each D?

Several Liability

What is the prima facie case for strict liability?

1. an absolute duty to make the P's person or property safe

2. breach

3. actual and proximate causation, and

4. damages

What three situations generally impose strict liability?

DAD

Dangerous activities;

Animals; and

Defective or dangerous products.

*Only situations in which a D can be liable without fault. Otherwise, strict liability is generally the wrong answer.

What are common abnormally dangerous activities?

Mining

Blasting

Using Explosives

Fumigating

Crop Dusting

Excavating 

Disposing of Hazardous Waste

Storing Gasoline in residential areas

Storing Toxic Chemicals and gasses

Storing large quantities of water and other liquids

The possessor of a wild animal is strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm IF...

The harm arises from a dangerous propensity that is a characteristic of such a wild animals or of which the owner has reason to know.

What liability applies to an injury caused by a P's fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal?

Strict Liability

May a trespasser recover under strict liability for injuries inflicted by wild animals?

NO, except when a vicious watchdog.

However, landowner may be liable under a negligence theory

What are the defenses to strict liability?

Contributory Negligence 

Comparative Fault

Assumption of theRisk

Statutory Privilege

In what ways can a product be defective?

A product may be defective because of a defect in its design or manufacture or because of a failure to adequately warn the consumer of hazard related to the foreseeable use of the product.

What are three possible claim types a products-liability case can be based?

Negligence

Strict Products liability

Breach of warranty

*Each type requires different elements.

What are the elements of a negligent products liability claim?

Duty: The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable P.

Breach: Failure to exercise reasonable care in inspection or sale of product constitutes breach. P must establish that defect would have been discovered upon reasonable inspection.

Cause: Must prove actual and proximate cause.

Damages: Purely economic loss is generally not allowed, P may recover personal injury or property damages.

Defense: contributory/comparative & assumption of the risk

When a seller sells a product with a known defect and without giving adequate warnings about the defendant, the failure to warn may be a _________________ cause, breaking the chain of causation between the manufacturer and the injury.

Superseding.

Elements of Strict Products Liability

1. Product was defective (in manufacture, design or failure to warn)
2. The defect existed at the time the product left the D's control; and
3. The defect caused the P's injuries when used in an intended or reasonably foreseeable way.

What tests are applied by courts to determine whether a design defect exists?

1. Consumer Expectation Test: Does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous to him? 
2. Risk-utility Test: Do the risks posed by the product outweigh its benefits? (P must prove a reasonable alternative design in majority of jx, that is economically feasible).

When does a failure to warn defect exist?

If there were foreseeable risks of harm, not obvious to an ordinary user of the product, which risks could have been reduced or avoided by providing reasonable instructions or warnings.

What are the two types of implied warranties?

Merchantability: warrants product is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Seller must be a merchant of kind of goods at issue.

Fitness for a particular purpose: Only applies if the seller knows the particular purpose, and the buyer relies on the seller's skill or judgment in supplying the product.

What damages can be recovered for a breach of an implied warranty?

Personal injury

property damage

purely economic loss

What are the defenses to warranty claims?

Disclaimers:

Tort Defenses:

• assumption of the risk,
• comparative fault,
• contributory negligence,
• product misuse in implied warranty claims,
• failure to provide notice of breach

Elements of Defamation

1. D's defamatory language
2. is of or concerning the P
3. published to a third party who understands its defamatory nature; and
4. it damages the P's reputation

RE: Defamation, if P is a public official or public figure, what must P prove?

Actual Malice

Defamation: Private Individual: Matter of public concern

If the plaintiff in a defamation action is a private individual and the defendant’s statement involves a matter of public concern, then the plaintiff is constitutionally required to prove that the defendant acted with fault—either negligence or actual malice.

Defamation: Private Individual: Not a matter of public concern

If the plaintiff in a defamation action is a private individual and the defendant’s statement does not involve a matter of public concern, then the constitutional requirements do not apply. At common law, the defendant was strictly liable. Most states today require at least negligence by the defendant for all defamation actions, and some now require actual malice in all defamation actions.

What are the differences between libel and slander?

Defamation by words written, printed, or otherwise recorded in permanent form is libel.

Libel damages need only be general.

Defamation by spoken word, gesture, or any form other than libel is slander

Slander damages are special, requiring P to prove third party heard, and acted adversely.

What qualifies as Slader per se?

Accuses the P of:

Criminal conduct

Reflecting poorly on the P's trade

Loathsome disease

sexual misconduct

What are the invasion of privacy torts?

MNEMONIC: I FLAP (Intrusion, False Light, Appropriation, Private facts)

P does not need to prove special damages for any of the invasion of privacy torts.

Emotional distress and mental distress are sufficient

Elements of Misappropriation of the Right to Publicity

1. D's unauthorized appropriation of the P's name, likeness, or identity
2. for D's advantage
3. Lack fo consent
4. Injury

Elements for Intrusion upon Seclusion

D's act of intruding, physically or otherwise, into the P's private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person establishes liability.

No publication is required here, unlike other forms of invasion of privacy.

Elements of False Light

P must prove that D:

made public facts about the P that

placed the P in a false light

which would be highly offensive to a reasonable person

Most jx require P to prove actual malice by D

Elements of Public Disclosure of Private Facts

To recover P must show:

D gave publicity to a matter concerning the private life of another; and

the matter publicized is of a kind that:

would be highly offensive to a reasonable person; and

is not of legitimate concern to the public

What is false imprisonment? 

Results when a person acts intending to confine or restrain another within boundaries fixed by the actor, those directly or indirectly result in such confinement and the other is conscious of the confinement or is harmed by it.

A threat of claim of lawful authority to detain is sufficient to show confinement.

RE: false imprisonment, what is the length of time of the confinement used to determine?

Th extent of damages

Negligence: The Standard of Care

What duty do land possessors owe toward discovered or anticipated trespassers?

TO warn or protect them from concealed, dangerous, artificial conditions.

No duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm.

Negligence: The Standard of Care

What is a private nuisance?

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use or enjoyment of his land

The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance

Finally, a substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community.

Negligence: The Standard of Care

What are examples of private nuisance?

A few examples of private nuisances are:

1. vibration,
2. pollution of a stream or soil,
3. smoke,
4. foul odors,
5. excessive light, and
6. loud noises.

Negligence: The Standard of Care

What standard of care, does a landowner owe an invitee?

A duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.

Negligence: Special rules of liability

What must a plaintiff suffer to recover for negligent infliction of emotional distress?

The plaintiff must suffer physical symptoms

Negligence: Sharing Liability Among Multiple Defendants

In a pure several liability jx, what is each tortfeasor liable for?

Only his proportionate share of P's damages.

Intentional Torts Involving Personal Injury: Generally: Intentional Infliction of Emotional Distress

When is conduct extreme and outrageous?

If it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. 

Courts are more likely to find a D's abusive landuage4 and conduct to be extreme and outrageous if the P is a member of a group with a known heightened sensitivity (e.g., pregnant woman).

Harms to Personal Property and Land: Trespass to Chattels

When is D liable for trespass to chattels?

D is liable if he intentionally interferes with the P's right of possession by either dispossessing the P of the chattel or using or intermeddling with the P's chattel.

In the case of dispossession, a P must prove damages by either the actual damages caused by the interference or the loss of use.

Negligence: Causation: Actual Cause: Multiple and/or indeterminate tortfeasors

What is the theory of alternative causation?

If P's harm was caused by:

i. a small number of Ds, usually 2 almost never 4,5

ii. each of whose conduct is tortious, and

iii. all of whom are present before the court, then the court may shift the burden of proof to each individual D to prove that his conduct was not the cause in fact of the P's harm. 

The initial burden of proof is on the P, to prove that all Ds did, in fact, act negligently. 

Negligence: Causation: Actual Cause: Multiple and/or indeterminate tortfeasors

What is the theory concert of action?

2 or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the P's harm, then all Ds will be held jointly and severally liable.

When does indemnification apply?

When one tortfeasor is vicariously liable for the other's wrongdoing.

Products liability: Strict Products liability

How to prevail under strict products liability design defect theory using risk-utility test?

A jury must determine whether the risks posed by a product outweigh its benefits.

P must prove that a reasonable alternative design was available to the D and the failure to use that design has rendered the product not reasonably safe.

This alternative must be economically feasible

Defamation, Invasion of Privacy, and Business Torts: Intentional misrepresentation

How to recover for intentional misrepresentation?

The P must establish:

misrepresentation by the D,

scienter,

intent to induce the P's reliance,

justifiable reliance by the P, and

actual economic damages

Intentional Torts Involving Personal Injury: Assault

Is a proof of damages required for assault?

No

How can a P collect judgment under joint and several liability?

P can collect the entire judgment from one D, the entire judgment from another D, or portions of the judgment from various Ds, as long as the entire P's recovery does not exceed the amount of the judgment.

When does a failure to warn defect exist?

  Defamation, Invasion of Privacy, and Business Torts

What is required when a defamatory statement is made about a group?

  Defamation, Invasion of Privacy, and Business Torts: Intentional interference with Business Relations

What is required to prove intentional interference with a contract?

P must prove that:

i. a valid K existed between the P and a third party

ii. The D knew of the contractual relationship

iii. The D intentionally interfered with the contract, causing a breach; 

iv. the breach caused damages to the P

P must show only a pecuniary loss of the benefits from the contract, there is no requirement that the interference prevent the P from being profitable or that the loss be substantial

What are the intentional Torts?

Battery

Assault

False Imprisonment

IIED

Bystander IIED (NIED)

Trespass to land

Trespass to chattel

Conversion

What must P show for battery?

i. harmful or offensive contact

ii. to P's person

iii. D's intent; and 

iv. causation

What are the defenses to intentional torts?

Consent

Self Defense & Defense of others

False arrests

defense of property

What are the false arrest, defense to intentional torts?

Felony arrest w/o warrant

misdemeanors arrest w/o warrant

crime prevention w/o warrant

What are the defense of property tort defenseS?

Re-entry to land

Re-capture to chattel

Shopkeepers privileges 

Public necessity

Private necessity 

What is intrusion upon seclusion?

P must show that D's act of prying or intruding into a private affair, in which P has a reasonable expectation of privacy, would be objectionable to a reasonable person.

A physician's specific obligation to explain informed consent

Physician's are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment

Failure to comply with the "informed consent" doctrine constitute a breach of the physician's duty owed to patients and is actionable as medical malpractice.

What does the measure of damages include in a personal injury action?

All actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium.

Attorney's fees are not recoverable in a personal injury action.

Joint and several liability v. pure several liability 

Joint and several liability: Each tortfeasor who causes a single indivisible harm is jointly and severally liable for the entire amount of damages suffered by the P,

pure several liability jx: such a tortfeasor is only liable for that tortfeasor's comparative share of the P's damages

when is a P precluded from recovering if he is more at fault than the D, what type of jx?

Modified comparative negligence jx (partial comparative)

What standard of care applies to an injury caused by P's fearful reaction to the sign of an unrestrained wild animal?

Strict Liability

Under what theory, does the failure to exercise reasonable care in the inspection or sale of a product constitute breach of duty?

Negligence

P must establish default exists, and that if D had exercised reasonable care in the inspection of sale of the product, the defect would have been discovered, and the P would not have been harmed. 

Who is a licensee?

(examples)

Social guest

no contractual obligation

Who is an invitee?

(examples)

Contractors

Who has a duty to rescue?

i. family member

ii. common carrier and innkeepers to customers

iii. land possessors or invitees

BUT, if attempt to rescue, liable for any negligence during rescue