Torts II

No duty to protect

Exception - trees...liable if knows tree is defective and fails to take reasonable precautions to avoid injury to another

Majority Rule - Urban = yes; Rural = no

Minority Rule - must use reasonable care under the circumstances to inspect regardless of the nature of the condition

reasonable care to avoid harming others outside the property

1. What is the status of the person?

2. What is the duty of care owed based on that status?

no longer distinction b/t classes...always reasonable care under the circumstances

no distinction b/t invitees and licensees...still CL for trespassers

one w/o consent or privilege enters onto the property of another OR exceeds permission given

owner knows trespasser is there...has been discovered

owner knows trespassers continuously enter land for use

• majority - NO duty at all (unless known/frequent) BUT owe duty to refrain from harming a trespasser thru intentional or willful/wanton conduct
• i.e. - spring gun not OK

no duty to warn about concealed natural conditions

activities (hunting/driving) - duty of reasonable care to known/frequent trespassers

conditions - duty to warn known/frequent trespassers of concealed artificial conditions on the premises that may cause serious bodily harm which the landowner knows about and the trespasser couldn't reasonably discover

RR - trespasser AOR when enters the tracks; constant/strict care only required when there is a pre-existing duty/obligation

higher standard b/c of public policy

• Duty to warn if:
• (1) dangerous thing on premises
• (2) thing will draw children onto land
• (3) children will not be able to realize it is dangerous b/c of age

liability if have all three, B<LP, and failed to exercise reasonable care to eliminate the danger or otherwise protect the children

one enters onto property with the express/implied permission of the owner but on the property for his own benefit (companionship, diversion, entertainment; i.e. - social guest, door-to-door sales person)

duty to warn of concealed artificial/natural conditions OR any hidden danger on the premises that are actually known/should be known to the owner in which the licensee does not know or could not reasonably discover

• 1. Must warn of any condition regardless of nature
• 2. Doesn't require serious bodily harm, only some bodily harm

• one who enters the property with the express/implied permission of the owner:
• 1) public - on property b/c it is open to the public and by enticement of hte owner (i.e. - arcades, parks, shops)
• 2) business - on property for some benefit to the owner, can be mutual benefit (UPS, indpt contractor)

duty of affirmative care in all circumstances!!! - scope is determined by the area included in the invitation

duty to periodically inspect premises to ensure they are safe...usually warning is sufficient UNLESS condition likely to cause serious bodily injury and is easily curable at which point have duty to fix/make safe (B<LP)

L has no duty of care toward T or T's guests thereofre no liability for injury to either

L must exercise ordinary care toward T and others on premises with permission under the circumstances

duty of reasonable care to protect against/prevent foreseeable harm from 3rd party criminal activity

• 1. undisclosed dangerous condition known to L and unknown to T
• 2. conditions dangerous to persons outside the premises
• 3. premises leased for admission to public
• 4. common areas
• 5. where L contracts to repair
• 6. negligence by L in making repairs

CL (and still majority) - owner of animal likely to roam and do damage is SL

Exception - cats and dogs...requires fault

• Minority (mainly Western states)
• 1. fencing out statutes
• 2. fencing in statutes

liability w/o fault...all that must be shown is that defendant engaged in some certain activity and plaintiff will recover

not due to negligence but the failure to make something safe

owner is SL if animal injures anyone...but the harm suffered must be the harm risked by having that type of animal

Exception - ppl in the business of displaying these animals to public (i.e. - circus, zoo) at which point fault must be proven...negligence standard

generally no SL and animals are entitled to one bite unless owner knew or had reason to know that the animal had vicious or harmful propensities

• Test - whether the animal has dangerous propensities abnormal to its class
• - dangerous as to someone will get hurt but not necessarily that animal will attack

burden is on the plaintiff...if doesn't prove knowledge than no SL and muse prove negligence to recover

• 1. high degree of risk of some harm
• 2. likelihood that harm will be great
• 3. inability to eliminate risk by exercise of reasonable care
• 4. extent to which activity is ont a matter of common usage
• 5. inappropriateness of the activity to the place where it is carried on
• 6. value to community < dangerous attributes

so dangerous that even if exercise reasonable care the harm can't be prevented (i.e. - explosives, toxins, flammables)

there is SL only for the damage which results from kind of risk made the activity abnormally dangerous

no liability if harm wouldn't have occurred but for the fact that plaintiff conducts an abnormally sensitive activity (i.e. - Mink case)

NO

exception - provocation of vicious animal

jurisdictions will compare the negligence of D who is SL and P who contributed to his own harm...done by comparing the common elements in the cause of fact

yes when P knowingly and voluntarily subjects himself to danger...P must have subjective/actual knowledge of the danger to AOR

intentional, criminal, or act of nature then deemed superseding cutting off SL...may still be negligently liable

no

D's conduct interferes with the common right of the general public

must be substantial harm to the public at large

• 1. type of neighborhood
• 2. frequency/duration
• 3. degree of damage
• 4. social value of the activity

NO unless he has sustained damage that is different in kind, not just degree, from that suffered by public generally otherwise must be brought by fed or state agency

unreasonable interference with the P use and enjoyment of his land...P must have an interest in the land that has been affected

nuisance at all times under all circumstances...if it is a lawful activity then not nuisance per se

only a nuisance b/c of its location or manner in which it was constructed, operated, and maintained...not automatically a nusiance

• 1. interference is substantial
• 2. D's conduct was either intentional, negligent, abnormally dangerous, or reckless

• 1. harm of P outweighs utility of D conduct
• factors: (1) social value that law attaches to primary purpose of the conduct; (2) suitability of conduct to location; (3) ability to avoid invasion; (4) usefulness/effectiveness of D activity

• 2. harm caused to P is greater than P should be required to bear w/o compensation
• factors: (1) character of neighborhood or social expectations; (2) character/extent of harm; (3) priority in time; (4) social value society attaches to the type of use/enjoyment invaded

• 1. compensatory damages
• 2. injunction

all privileges and defenses work the same way in this tort as they do in others (intentional, negligent, SL)

liability of another for his tort w/o fault of your own

• 1. ER/EE
• 2. Independent Contractors
• 3. Joint Enterprises
• 4. Bailment/Auto Consent Statutes

• 1. agreement
• 2. common purpose
• 3. common pecuniary interest
• 4. equal right to a voice in the enterprise

• 1. nondelegable duty
• 2. apparent authority
• 3. inherently/intrinsically dangerous activity
• 4. Illegal Activity
• 5. ER's own liability

• 1. EE intent
• 2. nature, time, and place of deviation
• 3. length/duration
• 4. EE job/work
• 5. incidental acts reasonably expected by ER
• 6. freedom allowed EE while performing his job

requires actual injury

• 1. direct loss
• 2. economic loss
• 3. pain and suffering
• 4. hedonistic damages - damages for loss of the ability to enjoy one's previous life

small sum of $ awarded to vindicate P rights..awarded when damage isn't an element of the COA

NOT recoverable in negligence cases

to make the P whole again and focus on the P, accountability, and compensation

• 1. special damages
• 2. general damages

quantifiable, out of pocket losses

• 1. medical expenses - must be medically necessary, caused by the D, and reasonable in amount
• 2. lost wages - temporary total disability, temporary partial disability
• 3. loss or impairment of future earnings

must take P as you find him!!! - pre-exisiting injury/condition

not quantifiable or noneconomic

• 1. pain and suffering/mental anguish
• 2. loss of enjoyment of life

generally D will have to pay even if P has been compensated by collateral source (i.e. - insurance)...can't introduce this evidence

• 1. rebuttal of P testimony
• 2. to show that P contributed to his own condition
• 3. impeach P testimony
• 4. to show that P actually continued work

if P could have avoided some damage by undertaking treatment/procedure then can't recover for the extra damage

directs trial judge to determine whether the verdict of the jury exceeds the max amount which the jury could reasonably find

award of damages will be deemed excessive if it falls outside the range of what is fair/reasonable or shocks the judicial conscience

factors: (1) permanency of P condition; (2) possibility of future deterioration; (3) extent of P's medical expenses; (4) restrictions imposed on P by the injury

judge feels award is too high and lowers amt; if P refuses to accept the amt then get new trial

judge feels award is too low and raises it; if D refuses to pay then get new trial

reduce amount of damages awarded such that with interest it will be the intended amount at the specified time

principal award plus interest = lump sum after X years

if P could have reduced some of those damages thru having a medical procedure and fails to do so, then P not compensated for those damages

whether P acted as RPP under the circumstances

• 1. degree of pain/risk involved
• 2. degree of success and failure
• 3. cost

awarded to penalize a D whose conduct is particularly outrageous

focuses on the behavior and characteristics of the D rather than P

• 1. wealth of D
• 2. reprehensibility of D conduct
• 3. profitability of D misconduct
• 4. aggregate of all other sanctions against D
• 5. litigation costs
• 6. ratio b/t harm caused/potentially caused by D conduct and losses suffered by P

clear and convincing evidence

• 1. D must have committed fraud, malice, recklessness
• 2. cap on award depending on which is greater (unless DUI) - 3x compensatory damages OR $250,000

must be authorized by statute or a showing of actual malice or other affirmative misconduct

majority - liable only if ER ratified the conduct, negligent in hiring D, or EE was acting as manager

minority - no recovery

wrongful act, neglect, or default of another that would have entitled injured party to maintain an action and recover damages but caused death

governs the right of the victim's survivors (typically spouse and children) to recover

death of either tortfeasor/victim eliminated all tort claims...if either party died the COA died with them

general rule - personal rep of deceased, dictated by statute

minority rule - some states allow beneficiaries to bring claim by statute

general rule - designated beneficiaries dictated by statute (spouse --> children --> parents --> kin)

stepchildren if financially dependent on decedent

child out of wedlock if father acknowledges existence of relationship b4 death

viable unborn child

• 1. loss of support
• 2. $ value of services (nurture, training, education, and guidance)
• 3. loss of society and comfort (companionship, consoritum, love, affection)
• 4. funeral expenses

CL - limited to pecuniary interest or child's earning and services

ML - loss of benefits (monetary value of contribution and services...reasonable cost of supporting kids)

allows damages up to the time of death of the decedent....these are the elements of damages that victim himself could have sued for had he lived

damages based on loss to estate rather than loss to dependents or other suvivors...governs whether victim's own recovery continues after his death

if death is instantaneous then no survival action...must be conscious of pain and suffering from time of injury until death

CL - replevin actions, injury to person, injury to real/personal property, fraud, against officers/high ranking officials

majority - COA for injury to all tangible personal property, personal injury actions

allow - incomplete recovery if wrongdoer only has to answer for portion of damages caused after death

limit - windfall of distant relatives not dependent or cared little about deceased

general rule - executor or adminstrator of estate

minority - some states allow representatives, heirs, devisees to bring claim for victim or against these parties of tortfeasors

decedent's estate subject to creditors and then net proceeds to heirs under will

any defenses that might have been set up against the decedent had he lived are still available to D

contrib, AOR, consent, defense of property, and self defense can all be used to bar recovery if would have been available to D if victim had lived

WD - beneficiary's own negligence in contributing to the decedent's death is subject to normal contrib or comparative negligence rules at play in the jurisdiction

SA - the heir's negligence doesn't bar the estate's claim, but the D may seek contribution from a negligent heir recouping the negligent heir's proportionate share of hte inheritance thru the estate

multiple beneficiaries and one is contrib neg - that beneficiary is barred and rest have diminished recovery

majority - operates as bar to any subsequent suit founded upon his death

minority - still entitled to bring WD action

generally dictated by statute but when aren't there is a split:

• majority - SoL runs from time of original injruy and WD action may be lost b4 accrued
• minority - SoL runse from the date of death

oral defamation, defamatory statement expressed in transitory form

necessary to prove special damages (pecuniary loss) unless the words spoken come w/i one of the four classes of slander per se

considered to be so bad and so defamatory that willing to presume P suffered damage to his reputation...4 exceptions which don't require proof of special damages

• 1. imputation of major crimes
• 2. loathsome disease
• 3. business, trade, profession, or office
• 4. serious sexual misconduct

written defamation, defamatory statement expressed in a fixed medium (writing, picture, sign, electronic broadcasting, etc)

presumed damages

once COA has been established P may recover additional damages for his mental distress, wounded feelings, and humiliation

if statement wasn't defamatory on its face and is necessary to be aware of certain extrinsic facts in order to appreciate its defamatory implications...required to allege and prove those extrinsic facts in order to have COA

must prove special damages

EXCEPTION - if statement is libel per quod but was spoken rather than written and if it would have been deemed slander per se then P may recover presumed damages

• 1. false and defamatory statement
• 2. of/concerning the P
• 3. published to person other than P
• 4. damages
• 5. fault (sometimes)

whether the words are reasonably capable of a particular interpretation and if so; whether they were in fact understood as defamatory

to be defamatory statement must have a tendency to harm the reputation of the P

must be read and construed in the sense in which the readers to whom it was addressed would ordinarily understand it - ordinary reader standard

• 1. welching on debt
• 2. calling person a liar
• 3. calling person a slut

• 1. any communication
• 2. any method
• 3. to one or more third persons other than P
• 4. done with intent or negligence

• 1. communication to P only
• 2. communication to self only
• 3. done by mere transmitters or disseminators (i.e. - telephone company) rather than publishers

one edition is one publication therefore only liable once for defamation even though it may have been printed numerous times...new edition = new COA

generally aren't liable b/c are distributors with no control over the content they distribute (i.e. - internet dating service, facebook, man at newspaper stand)

newspaper/book publishing company not considered secondary publisher and subject to SL UNLESS republication of terms received from wire services and: (1) service was reputable; (2) D didn't know of falsity; (3) story itself didn't reveal its falsity; (4) no substantial change was made to the story

one who repeats a defamatory statement made by another is held to have published it and is liable as if he were the first person to make the statement...true even if indicates the source and indicates that he himself doesn't believe the statement

foreseeability standard - if X could reasonably believe his statement would be repeated then liable for the repitition

statement that if believed hamrs P reputation, lowers her esteem in the community, or deters ppl from associating or dealing with her...need not be believed but need only be understood in its defamatory sense

statement whose defamatory meaning is understood by the receiver/listener of hte statement

• 1. defamatory words
• 2. publication
• 3. inducement - extrinsic/background facts needed to understand the statement is defamatory
• 4. colloquium - formal allegation that words were spoken of and concerning the P
• 5. innuendo - conclusion reached
• 6. special damages (when nec for the COA)

both colloquium and innuendo must be reasonable in light of the words spoken and the facts placed in the inducement...if they don't support the defamatory meaning then no COA

• 1. merely foreseeably harmful statement
• 2. name calling
• 3. hyperbole
• 4. true statement
• 5. pure opinion

judge determines if statement may be defamatory and then jury decides if it is actually defamatory

jury is the norm....sufficient if only one person understands the defamatory meaning

ordinary reader

• large group - generally no claim for either the group as a whole or any individual member (> 25 ppl)
• small group - each and every memeber is referred to than any individual member can sue

whether a reasonable person reading the book would understand that the fictional character was in actual fact, the P acting as described (RPP)

whether in the mind of the average reader the publication, considered as a whole, could reasonably be considered as defamatory

actual malice standard - D knew statement was false or acted with reckless disregard as to its truth or falsity

negligence not enough!!!

must be intentional/reckless

presumed damages

SL is Ok for now

presumed damages w/o having to prvoe actual malice

has no bearing on P role, capacity, or fitness as a public official/figure

states can impose whatever standard they want to regarding the falsity of the statement as long as it isn't SL

actual malice standard -

negligence - actual damages

SL is Ok for now

presumed damages

person that we care about and have a greater interst in than just the general interest we have in government officials generally (i.e. - elected officials and candidates, high ranking appointed officials, cops)

person who has gained pervasive fame and notoriety...ppl who have some broad, general fame and not just on certain important public matters (i.e. - Pope, Madonna, Michael Jordan)

someone who has notoriety/recognition just on certain public matters...has voluntarily thrust himself or been dragged into public issue

• 1. judicial proceedings - must have some bearing/relation on the subject matter of the proceeding
• 2. legislative - must be made during the proceeding
• 3. executive - as long as occurs during exercise of official duties
• 4. consent
• 5. H&W - to each other, not about each other
• 6. statements required to be published

• 1. protection of self-interest
• 2. protection of 3rd party interest
• 3. protection of mutual interest
• 4. general public interest

• 1. manner of publication
• 2. don't believe statement is true

• 1. monetary damages
• 2. injunction preventing D from republishing statement

• 1. D used P name or likeness
• 2. use of P name or likeness was for the D's own purpose/benefit...commercial or otherwise
• 3. P suffered damages
• 4. D caused those damages

likeness must be used in such a way that person is identifiable

• 1. D used P likeness/name
• 2. use of P name/likeness was for the D's own purpose/benefit
• 3. P suffered damages
• 4. D caused those damages

CL Rule - protection of person's name/likeness from unwarranted intrusion or exploitation (right of privacy with regards to famous ppl)

newsworthiness - if used in newsworthy publication

• 1. intrusion into a private place, conversation, or matter
• 2. in a manner highly offensive to a reasonable person

proven only if P had an objectively reasonable expectation of seclusion/solitude in the place, conversation, or data source...doesn't have to be absolute privacy and can have privacy around a select number of ppl

not publication tort!

• 1. publication to more than just one or a few individuals
• 2. private facts not generally known or made available to the public
• 3. highly offensive to the RPP
• 4. no legitimate public concern

deals with truthful publication of private facts!!!

Not in NC

• 1. publication to substantial number of ppl
• 2. placing P in false light
• 3. highly offensive to RPP
• 4. actual malice

test - material and substantial fabrication

Not in NC!!

doesn't have to be defamatory as long as is false and highly offensive to RPP; may arise when info is truthful but used to put P in false light

• 1. institution of criminal proceedings
• 2. termination in favor of D
• 3. absence of probable cause
• 4. improper purpose
• 5. damages

D actually guilty - no liability if can prove the D actually committed crime charged with

• 1. institution of civil proceedings
• 2. termination in favor of D on the merits
• 3. absence of probable cause
• 4. improper purpose
• 5. damages

• 1. use of legal process
• 2. for a purpose other than that for which it is intended (to harass, humiliate, embarrass)

i.e. - go to law school married and fall in love with classmate, wife finds out and decides to sue for alienation of affection but waits to have the gf served until night before her bar exam

• 1. false statement of kind calculated to damage a pecuniary interst of the P
• 2. publication to 3rd person
• 3. malice in the prosecution
• 4. damages (must always be proven)

competitor's are permitted to make comparative statements even though D is fully aware that what he says is false and the publication is made for the purpose of injuring the P by taking business away from him

when gets very fact specific is no longer privileged

D has right to protect his own interests by assertion of bona fide claim to any kind of property

defeated if: (1) desire to do harm; (2) didn't honestly believe the assertion was true

• 1. valid K
• 2. D knew of K
• 3. D interfered with K
• 4. causation
• 5. damages

• 1. existence of prospective K relation
• 2. knowledge of prospective K relationship
• 3. interference with the prospective K or relationship
• 4. wrongful act
• 5. causation
• 6. damages

• 1. truthful or honest advice given in response to a request
• 2. interference with an illegal K
• 3. interference by person responsible for welfare of another
• 4. interference to protect your own legal interest
• 5. protection of public interest

• 1. punitive
• 2. consequential - mental anguish/distress
• 3. monetary damages
• 4. injunction

false statement of fact in any manner (oral, written, gesture, etc)

D actively hides a condition from P...doesn't make any statement about it but covers it up such that P can't discover it on his own

normally treated as intentional misrepresentation

• 1. material misrepresentation - has some bearing on the X, some meaning or importance to it
• 2. scienter - state of mind; must know statement is false
• 3. D intended to induce P relinace on the misrepresentation - motive is irrelevant
• 4. P justifiably relied on the misrepresentation - P subjectively and honestly believed in the statement

contrib is not a defense!!!

• 1. statements about future facts
• 2. opinion by non-expert
• 3. generalized statements of sales talk (puffing)
• 4. statement of law by layperson

general rule - no liability; no duty to disclose even material facts in X

• 1. statutes
• 2. confidential/fiduciary relationship
• 3. prior truthful representation that subsequently becomes false
• 4. half-truths/ambiguous statements given by D
• 5. D knows P is relying on false information and one would reasonably expect disclosure

• 1. D had a duty
• 2. material misrepresentation
• 3. negligence
• 4. D intended P rely
• 5. P justifiably relied
• 6. damages

• 1. statements made in jest as a joke
• 2. nonmaterial statement
• 3. statements of opinions by non-experts
• 4. statements of legal opinions by lay person
• 5. puffing
• 6. statement promising something in the future

generally statutory therefore varies from jurisdiction to jurisdiction...if liable for this than is SL