• There are no incapacity defenses to an intentional tort claim. That means every actor in a bar problem, who commits the elements of a tort will be held liable even if they would be incapacitated in a different field, includes children, mental illness, intoxicated, developmental disability. They’re treated as if they’re normal, sane, typical adults.
    • All intentional torts require intent. D intends a tort if he acts with the purpose/goal/objective/aim of producing the legally forbidden outcome. If the purpose of producing one
    • forbidden consequence, it’s as if you intended any other forbidden consequence that occurs - transferred intent
  2. Battery
    • protects the body
    • 1) Intent
    • 2) D commits a harmful or offensive contact (if it would normally be unpermitted by a person of ordinary sensitivity - groping, sexual harassment)
    • 3) Contact is with P’s person, including anything he’s holding or touching, anything connected - briefcase, purse
  3. Assault
    • protects your mind
    • 1) D places P in reasonable apprehension = knowledge. This means the Goliath P is in apprehension when David D has his sling. Idle threats/bluffs/unloaded guns are assaults if P would think so. If P knows the gun’s unloaded, no assault. Apparent ability creates a reasonable apprehension. If P doesn’t know whether the gun’s loaded, it’s assault.
    • 2) Of an immediate battery - words alone lack immediacy. Therefore, a verbal threat is not an assault, unless accompanied by a menacing gesture. Displays of a weapon, shaking your fist, moving towards another in anger fulfill immediacy. But even if you have a menacing gesture, words can eliminate the immediacy - “If you weren’t my best friend, I’d beat the crap out of you,” coupled with a shaking fist. Words that indicate a future assault do not meet immediacy - “I’m gonna mess you up tomorrow; you wait.”
  4. False Imprisonment
    • 1) D commits an act of restraint
    • threats are sufficient. “If you leave this room in the next 30 minutes, I’ll kill your son,” is sufficient, even if I leave the door wide open.
    • A failure to act can suffice if there was a prior understanding that D would act in a certain way - P has a disability and boards the plane early. When she arrives, the cabin crew ignores her and leaves. They don’t lock the cabin door, and there’s no threat. The failure to summon a wheel chair is the act of restraint for false imprisonment.
    • An act of restraint counts only if P is aware of it or harmed by it. If P doesn’t know he’s restrained, no false imprisonment.
    • 2) P is confined in a bounded area.
    • An area’s not bounded if there’s a reasonable means of escape that P can reasonably discover - You’re not locked in if you can get out.
    • P probably doesn’t have to jump out of a 10 story window. If the only way out is dangerous, disgusting, or humiliating, it’s not a reasonable means. If it’s hidden, it’s not reasonably discoverable
  5. Intentional Infliction of Emotional Distress
    • 1) Recklessness satisfies intent. D doesn’t have to intend to mentally distress P. Utter disregard is good enough.
    • 2) D’s conduct is outrageous.
    • Deliberately distressing someone isn’t always a tort. You have to do it by a forbidden method - firing someone and liking it.
    • Outrageous conduct exceeds all bounds of decency tolerated in a civilized society. Insults alone aren’t outrageous.
    • Hallmarks of outrageousness include repetitive, continuous harassment or insults; abuse of a power relationship; P is a member of a fragile class - young children (outrageousness can be not picking on someone your own size), elderly people, pregnant women (and D knows she’s pregnant).
    • Putting a rubber snake on someone’s chair and causing him to have a heart attack probably isn’t outrageous. Exploitation of someone’s hypersensitivity without knowledge is not outrageous. But it is outrageous to deliberately target someone’s emotional weakness, exploit a known sensitivity. It doesn’t matter how innocuous it would be to someone else.
    • 3) P suffers severe emotional distress. P doesn’t have to see a Dr, miss work, or have to take medication. Any self-reported emotional distress is submitted to the jury. The Bar will negate the element in the body of the question subtly, eg mild annoyance, slight irritation, transient upset is not severe emotional distress
  6. Trespass to Land
    • 1) Physical invasion: entering the property, but P doesn’t have to know he’s on D’s land. There doesn’t have to be assign or a fence. But there’s still an intent requirement. The intent is to commit a legally forbidden purpose, to be on D’s land. Sleepwalking on to your neighbor’s lawn isn’t a trespass. Throwing a tangible object onto the property is also trespass to land. Even watering your neighbor’s grass is trespass. The item thrown must be physical. Shining bright lights on your neighbor’s house or making loud noise is not trespass, but nuisance.
    • 2) Land: P’s interest in real estate for the purpose for this tort aren’t limited to the surface of the property, but includes the air above and soil below to a reasonable distance. Airplanes don’t trespass, but ball’s thrown across the property do.
  7. Trespass to Chattels and Conversion
    • require interference with tangible personal property: all electronics, clothes, cars (intangible: electronic files).
    • Interference includes damaging the property or taking it away from the owner.
    • The torts are different based on the degree of interference.
    • Slight interference is trespass to chattels.
    • Big harm is conversion.
    • The law divided this tort to give Ps a special remedy in conversion, where P can recover full market value of the entire item, not just the cost of repair (trespass to chattels).
    • Conversion is an effective forced sale: you break it; you bought it
  8. Affirmative Defenses to Intentional Torts
  9. Consent
    • Consent: P must have legal capacity to consent to a tortious invasion. You don’t have to have capacity to commit an intentional tort, but you have to for consent. Two 9 year olds children can consent to age-appropriate behavior, like wrestling, but not surgery or sex. Two 16 year-olds can consent to sex. The activities broaden with age.
    • We find consent in a problem by looking for express words of permission that aren’t obtained through fraud/duress, which negate express consent (not sharing that you have an STD or that you’re putting brass knuckles in your boxing glove are fraud and negate an express consent).
    • There’s also implied consent, which can arise from custom - If P goes somewhere were certain invasions are routine, the law assumes consent to those invasions, and P has no claim. Any kind of team sport may involve what would be a tort in a different context. If a stranger knocks you down on the street, it’s actionable, but not if you’re ballin’.
    • Implied consent can also arise from D’s reasonable interpretation of P’s objective conduct. Think of it as body language consent. Any info about P’s subjective process is irrelevant; we focus only on objective manifestations.
    • All consent has a scope. If D exceeds the scope of consent, he’s a TF (tortfeasor). When a physician is given consent to operate on one part of the body, it’s not a consent to operate on others. Knee surgery doesn’t mean you can get a nose job
  10. Protective Privileges
    • 1. Self-defense
    • 2. Defense of others
    • 3. Defense of property
    • D must satisfy proper timing (the threat is imminent or in progress, not over and done with; no revenge) and whether D had a reasonable belief that the threat was genuine (a reasonable mistake doesn’t defeat a protected privilege).
    • D who meets these standards can only use an amount of force necessary to respond to the threat. It’s a rule of proportionality.
    • Excessive force is an intentional tort. If someone’s going to slap you, you can’t knife them, but you can grab her harm, maybe even slap her first. But if someone’s coming at you or someone else with a knife, you can shoot him.
    • In cases involving property, you may never use deadly force (spring guns); it’s considered per se disproportionate
  11. Necessity
    • applies only to property torts: trespass to land, chattel, or conversions.
    • Public necessity happens when D invades P’s property in an emergency to protect the community as a whole or a significant group of people. D is the ultimate good Samaritan. The emergency can be a natural disaster or man-made; it doesn’t matter. D uses someone else’s property and destroys it, but isn’t liable because public necessity is an absolute defense.
    • Private necessity happens when D invades someone else’s property interest to protect his own safety, security or the safety of his things. Private necessity isn’t an absolute defense, but a qualified privilege.
    • D remains liable to the owner of the property for any actual harm (compensatory damages), but he’s not liable for nominal or punitive damages.
    • As long as the emergency continues, a private necessity actor has a right to remain on P’s land in a position of safety. He can take refuge and sanctuary, and P can’t repel him as long as the emergency continues. He can hide out in someone’s farm house if he’s caught in a blizzard.
    • If he breaks in, he’s liable for breaking the window and must pay compensatory damages. But his presence is lawful, so no nominal or punitive damages. If the owner’s there, he can’t kick him out. If he expels him forcibly, it’s battery and not defense of property
  12. Defamation
    • 1) D makes a defamatory statement specifically referring to P.
    • A defamatory statement adversely affects P’s reputation, which is a valuable asset in the eyes of the law. The concern isn’t with P’s feelings. Matters how others see P after statement.
    • Mere name-calling isn’t defamation.
    • An assertion of fact negatively reflecting on character is defamatory - “Smith embezzled from his client (honesty), killed a man yesterday (peaceabilty), sold state secrets (loyalty), cheats on his taxes, is an adulterer (morality).”
    • Statements of opinion can be defamatory if a reasonable person would conclude that it’s fact-based. “Smith was my lawyer. In my opinion, you’d be crazy to allow Smith to manage your funds.”
    • It can refer to D by name, but it’s enough just to make him identifiable.
    • If the statement refers to a group, courts distinguish between large and small groups. “One of the women at Betty’s hair salon is a prostitute,” every woman is defamed if there are only 3 women.
    • P must be alive when the statement was made, but not when suit is brought.
    • 2) D publishes the statement. Saying it to someone’s face isn’t enough, but it’s a minimal requirement. D must reveal the statement to one person other than P himself. Telling one other person is publication, and it doesn’t have to be intentional. Negligent publication satisfies the element.
    • 3) Damages, maybe
  13. Libel
    • defamation in any tangible medium of expression - a handwritten letter but also a news article.
    • P can get to the jury without proof of damages.
    • But the more damages he proves, the more he can get
  14. Slander
    • defamatory statement -spoken- allegation of fact affecting P’s character.
    • Like libel, P doesn’t have to prove damages for slander per se, but he only gets what he proves
    • Slander per se (closed list):
    • 1) D makes a spoken defamatory statement relating to P’s business or profession.
    • 2) Statement that P committed a crime of moral turpitude - most felonies and many misdemeanors. Physical assault is not likely to be moral turpitude.
    • 3) Statement imputing unchastity to a woman - Susy’s a slut. Saying an unmarried woman in sexually active is slander per se. It’s not slander per se to impute unchastity to a man.
    • 4) Statement that P suffers from a loathsome disease - leprosy or venereal diseases.
    • If it’s not slander per se, D must prove damages.
  15. Defamation Defenses
    • Consent (same as before; approve draft news article)
    • Truth (always available to D)
    • Privileges
    • Absolute Privilege: arises from D’s status.
    • Spouses talking to each other have an absolute privilege. If H tells W his boss is embezzling, that’s absolutely privileged, and isn’t defamation, even though it’s published.
    • Officials in the three branches of government making statements in their official capacities - the judicial branch, attorneys, judges, witness statements in open court and court papers are absolutely privileged.
    • Media reports of public proceedings are absolutely privileged
    • Qualified Privilege: arises from the circumstances in which the statement was made. It arises where there’s a public interest in encouraging candor. Ex - References and recommendations, statements made to the police. The privilege is qualified because it has conditions. You must have a reasonable belief that the statement is true and confine yourself to matters relevant to the conversation
  16. Defamation
    Special Case
    • The special case arises whenever D’s statement deals with a matter of “public concern.” There’s a First Am interest in the fullest conversation possible. We make it harder for Ps to win by forcing them 1) to prove the falsity of the statement. Truth is no longer a defense because the statements are presumed true. This requires P to prove a negative, which is difficult to say the least.
    • P must also show 2) fault D didn’t disseminate the statement with a reasonable belief that it was true.
    • If P is a public figure or celebrity, he must show that D made the statement intentionally (knew it was a lie) or recklessly (did not investigate its accuracy).
    • If P’s a private figure, it’s enough to show D made the statement negligently (didn’t reasonably investigate).
    • 1) Appropriation: D uses P’s name/image for a commercial advantage. There’s a newsworthiness exception. It’s a tort to put someone’s picture on a package but not to run their picture in a newspaper, even though it sells the paper. It can be a picture of anyone, not just a celebrity
    • 2) Intrusion: invasion of P’s physical seclusion in a way that’s highly offensive to the average person. Ex) wiretapping a phone, secret camera; peering in the window. P must have a reasonable expectation of privacy.
    • 3) False light: widespread dissemination of a material falsehood about P that would be highly offensive to a reasonable person. It can overlap with defamation. Telling people that Pete embezzles from the company is both. Misrepresenting P’s religious and political beliefs is false light and not defamation. This tort doesn’t require any fault. Even a reasonable belief in the accuracy of the statement isn’t a defense. D only has to be wrong.
    • 4) Disclosure: widespread dissemination of confidential information about P that would be highly offensive to a reasonable person. It can be accurate, but if you don’t want it spread around and it’s confidential, it’s actionable. Newsworthiness is an exception. If there’s a legitimate reason, media networks can publish it. Ex) Obama’s medical records, but not mine. So is dual spheres - a gay man who’s out to his friends can’t claim disclosure if someone outs him at work.
  18. Privacy Defenses
    • consent (works for all 4)
    • defamation privileges (absolute and qualified) apply to false light and disclosure
  19. Economic Torts
    • fraud (lying to someone to rip them off in a transaction)
    • negligent misrepresentation (carelessly misstating a fact in a transaction where the person’s reasonably relying on your expectation)
    • inducing breach of contract (persuading someone to walk way from a binding deal)
  20. Litigation Torts
    • malicious prosecution (instituting a lawsuit, civil or criminal, without PC for an improper purpose)
    • abuse of process (using a judicial proceeding for an illicit purpose - serving someone with a deposition so they miss an auction)
  22. Generally
    • Duty
    • Breach
    • Causation
    • Damages
  23. Duty
    • Two aspects:
    • 1) Obligation: to take risk-reducing precautions to lower the chance that you might hurt someone as you engage in daily activities. You owe this duty only to foreseeable victims. You don’t owe it to unforeseeable victims- those that are far away from the location of the negligent conduct when it occurred. They always lose negligence questions because they weren’t owed a duty. But Rescuers are not barred - get a free pass even though they were far away when the accident occurred.
    • 2) Default standard: You owe the care of a hypothetical reasonably prudent person acting under similar circumstances. It’s an objective standard and doesn’t make allowances for people’s individual circumstances/abilities. Doing your best can be negligent if your best just isn’t good enough. But a person with superior knowledge (a body of expertise or an isolated relevant fact; ex - limited visibility at a certain intersection) or with a certain relevant physical characteristic (wheelchair, height, blind) is held to the standard or an RPP with that superior knowledge
  24. Special Duty Standard
    • D is a child:
    • <4 are legally incapable of negligence and owe no duty (not tested);
    • 4-18 owe the standard of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
    • The test is subjective and doesn’t hold everyone to the same standard.
    • Every child is subject to a different standard, a customized, flexible, pro-D standard.
    • But if a child is engaged in an adult activity (operating any motorized vehicle: jet-ski, car; hunting depends on the state), then we use the adult RPP objective test
  25. Special Duty Standard
    Professional Malpractice
    • D must give the care of an average member of the profession engaged in similar professional services.
    • It’s a real world metric, not just a hypothetical standard.
    • Professionals must do what others in the field empirically do.
    • This typically requires an expert W to testify as to the standard of care
  26. Special Duty Standard
    Premises Liability
    • depart from the objective RPP test when the entrant is injured by a dangerous condition on the land/real estate.
    • 1. Undiscovered trespasser is owed a zero duty of care; screw him. He always loses a premises liability case because he’s the unforeseeable victim.
    • 2. Discovered/anticipated (it’s happened in the past) trespasser - 4-part test; 1)A duty only arises with regard to artificial conditions (man-made), not naturally occurring (no duty for avalanche). 2) The artificial condition has to be highly dangerous to trigger a duty that can kill or maim a trespasser. 3) The condition has to be concealed from the trespasser, not open and obvious. 4) The owner has to know of the condition. Concisely, the possessor only has to protect against known, man-made death traps on the land.
    • 3. Licensees, those who come on with (customary, unless indicated otherwise, or actual) permission but confer no economic benefit (social guest, solicitors) - the condition has to be concealed, known in advance by the possessor. Possessor must protect a licensee from all known traps on the land.
    • 4. Invitees, confer an economic benefit or the property is open to the public at large (supermarket, barbershop, airports, church, museum) - possessor must protect invitees from any condition that’s concealed and possessor knew of in advance or could have discovered with reasonable inspection (not every day or meticulous). Possessor owes an invitee a duty to protect from all reasonably knowable traps on the land.
    • 5. Firefighters and police officers can never recover for an injury that is an inherent risk of their job.
    • 6. Child trespassers are held to the standard of reasonable prudence regarding any artificial condition. This is based on the likelihood of children trespassing - proximity to a school, "attractive nuisance" (swing set, pool, truck tires); and the expectation of whether the children could protect themselves - Are they 16 or 2?
    • 7. Landowners can satisfy their duties by giving a warning. Tell the invitees/trespassers that there’s a hazard. The concealed hazard becomes obvious - Cuidado Piso Mojado
  27. Duty
    Statutory Standards of Care
    • P can borrow from a criminal or regulatory statute when P can show 1) he is a member of the class of persons the statute is trying to protect and 2) his injury is in the class of risks the statute is trying to prevent. That is class of person, class of risk test.
    • The statute then becomes the standard of care for that case only, and it will be the actual way in which the jury is charged.
    • On the essay, we make up what the purpose of the statute is.
    • Borrowing of the statute shuts down D’s circumstantial arguments, and the act is per se negligent.
    • Don’t borrow the statute if obeying it would be more dangerous than obeying the ordinary RPP standard or compliance with the statute would be impossible under the circumstances
  28. Duty
    Affirmative Duties
    • don't exist
    • 1. If you choose to undertake an activity, you must do so like a RPP.
    • 2. There’s no duty to rescue a stranger in peril, unless there’s a preexisting relationship that would trigger a duty (common carrier-passenger, owner-invitee, er-ee) or if D caused P’s peril.
    • The person must rescue reasonably under the circumstances (or risk liability), so D need not put his life in jeopardy.
  29. Negligent Infliction of Emotional Distress
    • D’s negligent act causes trauma to P’s psyche, not his person.
    • P can recover if -
    • 1. Near miss: D almost harms P’s person, putting P in a zone of physical danger, which distresses P, and P shows subsequent physical manifestations of the distress, visible and diagnosable, including depression.
    • 2. Bystander: P witnesses a negligent injury to a close family member. P can recover if he’s closely related and present at the scene of the injury when it occurred.
    • 3. Relationship: P and D aren’t strangers like in near miss and bystander. Emotional distress is highly likely given the nature of the relationship. Ex - Dr gives a false positive for HIV, and you crap yourself.
  30. Breach
    • Comparing what D did and why it was wrong with the standard.
    • Identify wrongful conduct and give a reason for why it’s a breach.
    • Ex) playing with the radio and not watching the road was unreasonable because reasonable people keep their eyes on the road; deciding to drive after 8 martinis was a breach because it impairs ability to drive carefully.
    • Must offer the REASON
    • Res ipsa loquitor: applies when P lacks information/can’t identify what D did wrong. As an alternative to direct evidence, P shows the accident is normally due to negligence and that the accident is normally due to someone in D’s position - D had control over the thing in question.
  31. Causation
    when writing essays talk about factual cause first and legal cause second, but definitely talk about both
  32. Causation
    Factual Cause
    • linkage between breach and injury suffered.
    • The breach is a factual cause if but-for the breach, P would be uninjured today. If D acted properly, and P would have been injured anyway, D is not the factual cause.
    • Breaches, not Ds, are factual causes. The breach is a factual cause, not the cause. All events have an infinite number of causes.
    • For merged causes of harm (fires combine) we use the substantial factor test. A breach is a substantial factor if it would have caused the injury by itself if it were the only breach in the facts. Multiple Ds are joint and severally liable.
    • For unascertainable causes, the burden of proof shifts to multiple Ds to shift their ways out of it. Otherwise, they’re jointly and severally liable
  33. Causation
    Legal Cause - Proximate Cause
    • fairness: P must convince that D’s liability would be fair/foreseeable (in the scope of D's responsibility)
    • direct cause: almost always foreseeable outcome, liability almost always fair.
    • Indirect cause: If there are additional events, P wins in the following cases because the injury was foreseeable -
    • intervening medical malpractice (D’s also liable for injuries resulting from a doctor’s malpractice that aggravated the injury; foreseeable b/c happens w/ regularity; [doctor also liable]);
    • intervening negligent rescue (good Samaritan makes things worse; rescuers are foreseeable and may make things worse);
    • intervening reaction/protection forces (in reaction to an accident, people stampede and further injure P);
    • subsequent accident/disease (P’s on crutches and falls).
    • In any other indirect cause case, compare the scope of the risk with the outcome. If the outcome (were you afraid of this outcome?) was within the scope of the risk, there’s proximate cause. (bad shrimp does not equal broken arm)
  34. Damages
    Once P establishes the other elements of a tort, he’s entitled to all damages, even if surprisingly great in scope
  35. Comparative negligence
    • Comparative negligence: D shows P failed to exercise proper care (reasonable prudence) for his own safety or violates a relevant statute.
    • The jury then compares fault and assigns percentages.
    • Pure comparative negligence (default) attributes damages according to percentage fault.
    • Modified/partial comparative negligence: P fault over 50% is an absolute bar to recovery, and fault under 50% reduces damages.
    • Comparative negligence states (46/51) have folded in affirmative defenses to the fault calculation.
  36. Strict Liability
    • Injuries caused by animals: Domesticated animals (dog bites) only entail SL if there’s knowledge of the animal’s vicious propensities (previously bit another person; negligence for bite 1; SL for 2).
    • But there’s no liability to a trespasser.
    • Wild animals entail SL. Safety precautions are disregarded. It doesn’t matter whether your leopard was in a cage or how prudent the owner was
  37. Strict Liability
    Dangerous Activity
    • Abnormally dangerous activity that 1) creates a foreseeable risk of serious harm even when reasonable care is exercised (the activity can’t be made safe) and 2) it’s not a matter of common usage in the community (it’s out of context).
    • Safety precautions are irrelevant
  38. Strict Liability
    Products Liability
    • Products liability elements:
    • 1) D is a merchant (routinely deals in goods of this type - casual sellers and service providers using the product are not; commercial lessors and any merchant in the distribution chain are merchants - ex, Cuisinart and Macy’s);
    • 2) the product is defective (mfg defects depart from their intended design; design defects occur when there’s a safer, cost-effective, practical design; information defects occur when a product can’t be redesigned cost effectively, the dangers are hidden/non-obvious, and there aren’t warnings);
    • 3) the product hasn’t been altered since it left D; and
    • 4) P makes a foreseeable use of the product (not just intended; standing on a chair).
  39. Strict Liability
    Affirmative Defenses
    • comparative responsibility
    • assign percentages
  40. Nuisance
    • an unreasonable interference with a person’s ability to use and enjoy his own land.
    • It can be caused deliberately or negligently.
    • Courts balance the interests.
    • P wins if his inconvenience outweighs D’s rights to enjoy his own land.
  41. Vicarious Liability
    • P sues a passive party unconnected to the injury because the passive party has a relationship with the active JTF.
    • Relationships include
    • employer-employee (committed in the scope of employment; intentional torts are (generally out but) in the scope if they’re authorized, in the nature, or desired to benefit the employer).
    • There’s no vicarious liability for an independent contractor, but a land possessor’s liable if an independent contractor hurts an invitee.
    • Car owners are liable only if they lend the car to someone to run an errand for them - agency. The commercial automobile renter is never vicariously liable for renter’s actions.
    • Parents aren’t vicariously liable for their kids’ torts, and there are no real exceptions.
    • CAUTION: just b/c there is one of these relationships, must first ask if person being sued can be directly held liable (active/passive; find active)
  42. Joint Tortfeasor Responsibilities
    • an out-of-pocket D can recover against other Ds based on percentage fault determined by the jury.
    • Comparative contribution happens when D pays everything if he was only partly at fault.
    • D can seek indemnification and get paid back in full if he was vicariously liable or a retailer strictly liable for the mfr’s defect.
  43. Loss of Consortium
    V is married, and the uninjured spouse gets a separate cause of action in his own name to receive damages for loss of services, loss of society (companionship/company), loss of sex.
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