Intent

A person acts intentionally where:

a) he desires to cause the consqeunces of his act, OR

b) the consequences are substantially certain to result from it.

Exisits in certain cases where the defendant intends tortious conduct against one party but the resulting harm is caused upon another party. 

In these instances, irrespective of motive, the defendant's intent is said to be transferred from the intended party to the party actually harmed.

Generally held liable for intentional torts they commit, even where they lack knowledge that the consequences are wrong or foreseeable.

Garratt v. Dailey, 46 Wash. 2d. 197

An actor is subject to liability to another for battery if:

1) He acs intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, AND

2) an offensive contact with the person of the directly or indirectly results

An actor is subject to liability to another for assault if

1) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and

2) the other person is thereby put in such imminent apprehension

A person is subject to liability to another for false imprisionment if

1) he acts intending to confine a person within certain fixed boundaries, and

2) his act directly or indirectly results in such a confinement of the other, and

3) the other is conscious of the confinement or is harmed by it

Confinement without

force or barriers

No action for false imprisonment will lie against a shopkeeper who detains a suspected shoplifter if:

1) there are reasonable grounds to believe that a theft has occurred;

2) the detention is conducted in a reasonable manner (i.e. - no deadly force used);

3) the detention is limited to a reasonable period of time to make an investigation

Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

1) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm; or

2) to any other person who is present at the time, if such distress results in bodily harm

Family Member                        Non-Family Member

Presensce required                Presence required

Bodily Harm NOT Required      Bodily Harm Required

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally

1) enters land in the possession of the other, or causes a thing or a third person to do so; OR

2) remians on the land; OR

3) fails to remove from the land a thing which he is under a duty to remove.

A trespss to a chattle may be committed by intentionally

1) dispossessing another of the chattel, or

2) using or intermeddling with a chattel in the possession of another

An intentional exercise of dominion or control over a chattel which seriously interfers with the right of another to control it. 

In conversion case, the defendant may justly be required to pay the plaintiff the full value of the chattel.

The full value of the chattel at the time of conversion.

Alternatively, the plaintiff may seek recovery of the property itself, in whcih case the remedy is replevin.

1) the extent and duration of the defendant's exercise of dominion or control;

2) the defendant's intent to assert a right in fact inconsistent with the others right of control;

3) the defendant's good faith

4) the extent and duration of the resulting intereference with the plaintiff's right of control;

5) the harm done to the chattle; and

6) the inconvience and expense caused to the plaintiff

Tort Defenses

Privilege

A privilege may exist where:

1) The person affected by the defendant's conduct consents;

2) some important personal or public interest will be protected by the defendant's ordinarily prohibited conduct, and this interest justifies the harm caused or threatened by the defendant's conduct;

3) The defendant must act freely in order to perform an essential function

Tort Defenses

Mistake

1) A defendant is under a duty to act for the protection of a public interest.

OR

2) A person acts in self-defense or in defense of others.

Tort Defenses

Consent

Tort Defenses

EXPRESS Consent

1) Fraud vitiates consent

2) Consent induced by duress is invalid

3)Consent given by mistake is a valid defense unless the defendant knew or took advantage of the P's mistake

4) Informed consent

5) Consent is invalid where incapacity exists

Tort Defenses

IMPLIED Consent

Tort Defenses

Self-Defense

Reasonable force may be used to defend against

1) unprivileged harmful or offenseive contact or

2) other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

Tort Defenses

Defense of Others

The actor is privileged to defend a third person from a harmful or offensive contact under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonable belives that

1) the circumstances are such as to give the 3d person a privilege of self-defense

2) his intervention is necessary for the protection of the 3rd person.

Tort Defenses

Defense of Property

An actor is privileged to use reasonable force, not intended or likely to cuase death or serious bodily harm, to prevent or terminate another's intrustion upon the actors land or chattles if;

1) the intrusion is not privilged or the other person intentionally or negligently causes the actor to belive that it is not privilieged, and

2) the actor reasonably believes that the instrusion can be prevented or terminated only by the force used.

Tort Defenses

Recapture of Chattels

Reasonable force allowed where taking is wrongful.  An actor may use reasonable force against another to regain personal property where the other person

1) tortiously took the chattel from the actor's possession w/o claim of right, OR

2) took the chattel under claim of right but by force or other duress or fraud, OR

3) has received custody of the chattel from the actor and refuses to surrender it or is about to remove it from the actor's premises

Tort Defenses

Forcible Entry on Land

Tort Defenses

Public Necessity

An actor may enter onto the land to avert an imminent public disaster

1) Even if there is a mistake, the entry is still privileged if the actor reasonably belives that it is necessary.

2) This is an absolute defense - the actor is not liable for either trespass or the damage to the property or chattel.

Tort Defenses

Private Necessity

In case of private necessity, the actor is liable for any harm he causes the poperty.

Tort Defenses

Legal Process

An arrest under a warrant is not privileged unless the person arrested

1) is, or the actor reasonably belives to be, sufficiently named or otherwise described in the warrant, OR

2) Although not the person named in the warrant, has knowingly caused the actor to believe him to be so.

Tort Defenses

Arrest without a Warrant

Tort Defenses

Discipline

Tort Defenses

Immunity

Negligence

Elements of Negligence Cause of Action

a) Duty of Care - The defendant has a legal duty to protect the plaintiff against an unreasonble risk of harm

b)Breach of Duty

c) Causation

    1) Actual Cause

    2) Proximate Cause

d) Damages - Plaintiff suffers actual harm

The plaintiff has the burden of proving by preponderance of the evidence:

1) Facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff.

2) Breach of duty by the defendant

3) That such breach was an actual and legal (or proximate) case of the harm suffered by the plaintiff

4) That the plaintiff has in fact suffered harm of a kind legally compensable by damages

Where the defendants negligence can be inferred using circumstantial evidence, by the doctrine of res ipsa loquitur.

1) The event is of a kind that ordinarilly does not occur in the absence of negligence

2) Other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence;and

3) the indicated negligence is within the scope of the defendant's duty to the plaintiff

1) "But For" test

2) Substantial Factor Test

3) Summers v. Tice Test

1 of 3 Tests for Causation In Fact

The Plaintiff must show that his harm would not have occurred "but for" the defendant's act.

1 of 3 tests for Causation in Fact

If the D's conduct was a substantial factor in causing the P's injury

1 of 3 Causation in Fact

Where an injury is caused by the negligence of two or more persons and the P cannot determine which one caused the harm, the burden of proof is shifted to each defendant.

The legal cause of an injury.

Limits liability in respect to (a) persons and (b) consequences

A defendant owes a duty of reasonable care only to foreseeable plaintiffs.

Majority View (Cardozo) - D owes a duty of care only to forseeable P's who are w/in the "zone of danger"

Minority View (Andrews) - Recovery to ANY person thereby harmed due to breach of D's duty of care.

Rescue Doctrine

(as applied to the foreseeability of harm)

Physical Consequences

(as applied to the foreseeability of harm)

Restatement Approach

(as applied to the foreseeability of harm)

Liability may be cut off when it is found that there was a highly extraordinary relationship between the defendant's conduct and the resulting harm.

"Was the harm within the risk"

Superseding Cause

(Definition)

Types of Superseding Causes

1) Acts of God

2) Criminal Acts of 3rd persons

3) Intentional Torts of 3rd persons

4) Extraordinary forms of negligent conduct

Intervening Force

Rule of Liability

(as applied to an intervening force)

1) Negligence of rescuers

2) Subsequent medical malpractice

3) Subsequent disease

4) Efforts to protect person or property

5) Subsequent accident

1) The fact that its intervention rings about harm different in kind from that which would otherwise have resulted from the D's negligence.

2) The fact that its operation or the consequences thereof appear after the event to be extraordinary and unforseeable.

3) The fact that the interveing force is operating independently of any situation created by the D's negligence.

1) P must affirmativly proce actual damages

2) Nominal damages are not available

3) Punitive damages generally allowed.

4) Personal Injury and Property Damages are recoverable

5) General and Special Damages Include:

Past and Future Pain and Suffering

Medical Expenses

Lost wages and loss of con-sortium

NOT attorney fees

Payments made to or benefits conferred on the injured party-plaintiff from other sourses are not credited against the tortfeasors liability.

Applies to the following types of benefits:

1) Insurance Policies

2) Employment benefits

3) Gratutities

4) Social Legislation Benefits

Exception to the

Collateral Sources Rule

Apportionment of Harm to Causes

Damages for harm are apportioned amoung two or more causes where:

1) there are distinct harms, or

2) there is a reasonable basis for determining the contribution of each cuase to a single harm

Where joint tortfeasors have together caused a single P a single harm, there is a right of contribution amoung them, even though judgment has not be recovered against all or any of them.

(defendants should only pay thier fair share - equitable apportionment)

If 2 persons are liable in tort to a 3rd person for the same harm and one of them discharges the liability of both, he is entitled to indemnity from the other if the other would be unjustly enriched at his expense by the discharge of the liability.

(shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm)

1) The indemnitee was liable only vicariously for the conduct of the indemnitor

2) The indemnitor supplied a defective chattle or performed defective work upon land or buidlings as a result of which both were liable to the 3rd person, and the indemnitee inncocently or negligently failed to discover the defect.

Professional Standard

(as to duty to act)

Emergency Situations

(as to duty to act)

General duty to act

The general rule is that there is no duty for care for nonfeasance

Moral obligation alone does not impose a duty to aid another.

The following have a special or higher duty of care to act for the protection of others.  They must excersise a greater amount of care than is ordinarily required by the usual reasonable person standard

1) Common Carriers - Special Duty to Passengers

2) Innkeepers - Special Duty to Guests

3) Possessors of Land - Duty to enterers of thier land.

4) Custody Keepers

There is no duty to control the conduct of a 3rd person as to prevent him from causing physical harm to another unless

1) A special relationship exists between the actor and the 3rd person which imposes a duty upon the actor to control the 3rd persons conduct, OR

2) A special relationship exists between the actor and the other person which gives to the other person a right of protection

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the parent

1) knows or has reason to know that he has the ability to control his child, AND

2) Knows or should have known of the necessity and opportunity for exercising such control

A master is under a duty to exercise reasonable care to control his servant while acting outside the scope of his employment in order to prevent him from intentionally harming other or from so conducting himself as to create an unreasonable risk of bodily harm to them,

1) The servant

     a) is upon the premises in possession of the master or upon which the servant is      priviliged to enter only as his servant, or

     b) is using a chattle of the master and

2) The master

     a) knows or has reason to know that he has the ability to control his servant, and

      b) knows or should know of the necessity and opportunity for exercising such control

If an actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to excersise reasonable care to prevent the risk from taking effect.

This applies even where the actor did not recognize the potential risk before he acted.

One who, being under no duty to do so, takes charge of another who is helpless adequatly to aid or protect himself is subject to liability to the other person for any bodily harm caused to him by

1) The failure of the actor to exercise reasonble care to secure the safety of the other while within the actors charge OR

2) the actors discontinuing his aid or protection, if by doing he leaves the other in a worse position than when the actor took charge of him.

If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonble person of like age, intellegence, and experience under like circumstances.

Children engaging in adult activities, however, are required to conform to an adult stanard of care.

Most jurisdictions impose on the driver of an automobile a duty of ordinary care toward a guest. 

Under guest statutes, however, the driver has a lessened duty, namely to refrain from gross, wanton, or willful misconduct.

1) a person who is in occupation of the land with intent to control it, OR

2) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, OR

3) a person who is entitled to immediate occupation of the land, if no other person is in possiession under clauses 1) and 2)

A licensee is a person who is privilege to enter or remain on land only by virtue of the possessors consent.

He enters the possessors land for his own benefit raterh than the benefit of the possessor.

An invitee is a person entering premises upon business concerning the occupier, and upon his invitation express or implied. 

An invitee gnerally serves some purpose of the possessor; however, the majority and Restatement 2nd view is that economic gain to the invitor is not required for invitee status.

1) Business Visitors

2) Public Invitess - Where premises are open to the public.

A possessor of land is not liable to trespassers for physical harm caused by his failure to exerise reasonble care

1) to put the land in a condition reasonbly safe for thier reception, OR

2) to carry on his activities so as not to endanger them.

A possessor of land who maintaing on the land an artificial condition which involves risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonble care to warn them of the condition if

1) the possessor knows or has reason to know of thier presence in dangerous poximity to the condition AND

2) The condition is of such a nature that he has reason to belive that the trespasser will not discover it or realize the risk involved.

A possessor of land is subject to liability for physical harm to children trespassing thereone caused by an artificial condition upon the land if;

1) the place where the condition exists is one upon which the possessor knows or had reason to know that children are likely to trespass.

2) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, AND

3) the children because of thier youth do not discover the condition or realize the risk involved in intermeddling with it or coming within the area made dangerous by it; AND

4) the utility to the possessor of maintaing the condition and the burden of eliminating the danger are sligh as compared with the risk to children involved, AND

5) the possessor fails to exercise reasonble care to eliminate the danger or otherwise protect the children

(based on foreseeablility of harm to the child, not attraction onto the property)

A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonble care for thier safety if, but only if,

1) he should expect that they will not discover or realize the danger AND

2) they do not know or have reason to know of the possessors activities and of the risk involved.

The scope of duty owed an invitee is twofold:

1) a duty to inspect the premises, and

2) remedy any unsafe or dangerous condition

Duty to does extend to areas outside the scope of invitation.

As a general rule, a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into exisistence after the lessee has taken possession.

A lessor has a duty to warn of known existing defects that are not likely to be discovered by the lessee.

A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair exisiting before or arising after the lessee has taken possession if

1) the lessor, as such, had contracted by a covenant in the lease or otherwise to keep the land in repair, and

2) the disrepair creates an unreasonble risk to persons upon the land which the performance of the lessors agreement would have prevented and

3) the lessor fails to exercise reasonble care to perform his contract

A lessor who leases land for a purpose which involves the admission of the public is subject to liability for physical harm caused to persons who enter the land for that purpose by a condition of the land existing when the lessee takes possession if the lessor,

1) knows or by the exercise of reasonble care could discover that the condition involves an unreasonble risk of harm to such persons, AND

2)realizes or had reason to realize that the P is inattentive and therefore unlikely to discovr his peril in time to avoid the harm, AND

3) thereafter is negligent in failing to utilize with reasonble care and competence his then existing opportunity to avoid the harm

Permits a negligent plaintiff to recover even where his negligence exceeds that of defendant.

FOLLOW THIS ON MBE UNLESS OTHERWISE TOLD

A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.

1) Knowledge of the risk using a subjective standard of the particular plaintiff

2) voluntary assumption

Includes acts so closely connected and reasonbly incidental to what the servant was employed to do, that they may be regarded as methods, however improper, to carry out the employers objectives.

1) The term detour is often used to denote permissible or slight deviations from an employees scope of employment

2) A frolic characterizes an unauthorized and substantial deviation

3) Intentional torts by servants are generally held not to be within the scope of employment unless the scope of employment includes the potential for use of force.

Where two or more individuals agree to enter into an undertaking in the performance of which they have a community of interest and mutual right of control.

Each member is vicariously liable for the torts of the others committed within the scope of this enterprise.

Notwithstanding the general principle, an employer is liable for;

1) negligence in selecting, instructing, or supervising the contractor

2) non-delegable duties of employer, arising out of some relation toward the public or the particular plaintiff, OR

3) work which is specially, peculiarly, or "inherently" dangerous.

Husband-Wife - No imputed contributory negligence

Parent-Child - generally not liable unless

1) The parent entrusts the child w/ a dangerous instrumentality

2) the child engages in tortious conduct while acting as a servant or agent of the parent

3) the parent knows of the child's wrongdoing and consents to it; or

4) the parent fails to exercise proper contol over his child.

Wrongful Death Actions

(general rules)

1) Common law tort actions became null upon the death of either party. [Defamation and privacy actions still do not survive the victims death; however, property damage and PI may be recovered for most torts]

2) A wrongful death action brought by a personal representative or spouse directly compensates the survivors  [no pain and suffering]

1) Assumption of Risk: The p's a.o.r. bars his recovery in a strict liability action.

2) Contributory Negligence: The contribuatory negligence of the P is not a efense in a strict liability action

One who sells any product in a defective condition unreasonbly dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consuer, or thier property if;

1) the seller is engaged in the business of selling such a product, and

2) it is expected to and does reach the user or consumer w/o substantial change in the condition in which it is sold.

Potential Defendants

Strict Products Liability

Potential Plaintiffs

Strict Products Liability

1) Direct privity between the P and the seller is not required.

2) Users and consumers

3) Bystanders (majority trend)

4) Also applies to protect resucers where defective products threaten injury.

An unreasonble interference with a right common to the general public.

In order to recover damages in an invidual action for public nusance, one must have suffered harm of a kind different from that suffered by other members of the public.

In order to maintain a proceeding to enjoin or abate a public nusiance;

1) have the right to recover damages

2) have authority as a public official or public agency to represent the state or a political subdivision in the matter or,

3) have standing to sue as a representative of the general public, as a citizen in a citizen's action or as a member of a class in a class action

The interference with plaintiff's use and enjoyment must be substantial

It must be offensive, inconvenient, or annoying to an average person in the community.

The interference must be unreasonable;

1) the gravity of P's harm outweighs the utility of D's conduct OR

2) the harm caused by D's conduct, if intention, is substantial and the financial burder of compensating for this and other harms does not render unfeasible the continuation of the conduct.

Those who have property rights and alleges in respect to the use and enjoyment of the land affected, including private

1) possessors of the land

2) owner of easments and profits in the land, and

3) owners of non-possessory estates in the land that are determintanlly affected by interferences with its use and enjoyment

1) one is subject to liablity for a private nuisance if, but only if, his conduct is a legal cause of an invastion of anothers interest in the private use and enjoyment of land, and the invasion is either

a) intentional and unreasonable, or

b) unintentional and otherwise actionable under the rules controlling liabilty for negligent or reckless conduct.

1) Contribuatory Negligence

2) Assumption of Risk

3) Coming to the Nuisance (not determative, but a factor to be considered)

4) Compliance with Statute

1) Damages

2) Injunctive Relief

3) Abatement by Self-Help

4) Abatement of public nuisance

1) False representation

2) Scienter

3) Intent to induce plaintiff

4) Causation

5) Justifiable Reliance

6) Damages

Generally, there is no duty to disclose a material fact or opinion to another person.

EXCEPTIONS:

1) Fidcuiary Relationship

2) Active concealment actionable

3) Incomplete statements

4) new Information

Of or concerning the plaintiff which injures one's reputation

Aside from the below four, proof of special damages is generally required in slander actions:

1) criminal offense

2) loathsome disease

3) matter incompatible w/ his business, trade, profession, or office

4) serious sexual misconduct

Communicated to one other than the person defamed.

1) Knows that the statement is false and that it defames the other, and

2) acts in reckless disregard of these matters

3) acts negligently in failing to ascertain them.

1) True Statements

2) States in the course of judicial proceedings

3) Statemetns in the course of legislative process

4) Husband and Wife

5) Equal Time Broadcasts

1) Statements in the Defendant's Interest

2) Statements in the Interest of 3rd persons

3) Statements in the Public Interest

An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belife that

1) there is information that affects a sufficiently important interest of the publisher, and

2) the recipients knowledge of the defamatory matter will be of service in the lawful protection of the interest.

An occasion makes a publication conditionally privileged if the circumstanes induce a correct or reasonable belief that

1) there is information that affects a sufficiently important interest of the recipient or a 3rd person, and

2) he recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person to whom its publication is otherwise within the generally accepted standards of decent conduct.

1) the publication is made in response to a request rather than volunteered by the publishers or

2) a family or other relationship exists between parties.

An occasion makes a publication conditionally privileged if the cicumstances induce a correct or reasonable belief that

1) there is information that affects a sufficiently important public interest, and

2) the public interest requires the communicaiton of the defamatory matter to the public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true.

One who publishes defamatory matter concerning another upon an occasion giving rise to a conditional privilege is subject to liability to the other if he abuses the privilege.

Such as Excessive Publication

1) Intrusion upon Seclusion

2) Appropriation of name or Likeness

3) Publicity given to private life

4) Publicity Placing Person in False Light

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.

One who appropriates to his own use of benefit the name or likeness of another's is subject to liability to the other for invasion of his privacy.

This tort requires the use of P's name or picture in connection with the promotion or advertisement of a product or service for commercial advantage.

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

1) would be highly offensive to a reasonable person, AND

2) is not of legitiamate concern to the public

Liability may attach even if the statement or publication is true.

One who gives publicity to a matter concerning atnother that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if

1) the false light in which the other was placed would be highly offensive to a reasonable person

2) there is publicity

Under Time v. Hill - there must be malice

Proof of special damages is not required in privacy actions

Injunctions are generally available in cases of intrusion upon seclusion

Defamation defenses of absolute and qualified privilege are applicable to privacy actions based on public disclosure of private facts and false light

Consent is a valid defense.  Mistake as to consent is not a valid defense.

Truth is no defense.

1) if the prosecution initiates or procures the proceedings without probable cause and primarily for a purpose other than bringing an offender to justice, and

2) the proceedings have terminated in favor of the accused.

1) the harm to her reputation resutling from the accusation brought against her, AND

2) the emotional distress resulting from the bringing of the proceedings.

1) if the actor acts w/o basis and primarily for a purpose other than that of securing the proper adjudication of the claim on which the proceedings are based and,

2) the proceedings have terminated in favor of the person against whom they are brought (except when they are ex parte)

Trade Libel

(Injurious Falsehood)

Injurious falsehood aginst a trade or business.

Disparagment - attack upon ones goods.  This is distinguishable from defamation.

1) Publication

2) Derogatory Statement

3) Relating to the P's title to his property,or its quality or to his business

4) Causing interference with his relations with other to his disadvantage

Inducing breach or contract or interference with contract.

Must be intentional