Torts - Final Version

Extends defendant’s liability to unforeseeable consequences of an intentional tort.

Applicable to battery, assault, false imprisonment, trespass of land, and trespass of chattels. [BAFTT]

Intentional harmful or offensive contact with plaintiff's person, which is anything connected to plaintiff's person.

Consciousness of batter is not required.

Intentional act that causes plaintiff reasonable apprehension of imminent battery.

Consciousness of assault is required.

Defendant intentionally restrains plaintiff within a bounded area (i.e. barrier, force, holding property)

Defendant’s extreme and outrageous conduct causes plaintiff to suffer severe emotional distress.

Intentional physical invasion of plaintiff’s land.

Intentional interference with plaintiff’s right of possession in the chattel.

Intentional interference with plaintiff’s right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pays the full value.

Plaintiff must establish by clear and convincing evidence the defendant made an intentional misrepresentation of false material fact to the plaintiff, which induced plaintiff’s justifiable reliance, and resulted plaintiff’s injury.

Prima facie case requires existence of valid contractual relationship between 3rd party and defendant or reasonable business expectancy by plaintiff, defendant knew of it, intentional interference by defendant inducing breach or termination, and damages result.

May use reasonable non-deadly force to detain plaintiff for a reasonable time for reasonable investigation of possible shoplifting.

Express or implied consent. No consent if induced by fraud, misrepresentation, or plaintiff withdraws consent.

Reasonable non-deadly force to recover defendant’s personal property from plaintiff, and defendant is in hot pursuit.

Police Officer may use reasonable force or necessary deadly force to arrest plaintiff for a felony even if reasonably mistaken; and may use reasonable non-deadly force to arrest for a misdemeanor committed in front of police officer.

Private citizen must have reasonable suspicion that a felony occurred and plaintiff did it.

To intrude on plaintiff’s property to prevent loss to defendant’s interest in person or property.

Defendant must pay any damages, and plaintiff cannot eject or defend property interest.

To intrude on plaintiff’s property to prevent loss to an entire community. Defendant pays no damages, but public actor may be required to give just compensation.

Reasonable force used to protect self or another person against threat of bodily harm. Defendant belief that threat is real must be that of reasonable person in same situation.

Defendant may only use reasonable non-deadly force to defend property.

Prima facie case requires a false and defamatory fact about the plaintiff published to a third party, damage to plaintiff’s reputation resulted, and defendant was at fault.

Truth is a defense to defamation.

Naturally tends to expose plaintiff to hatred, contempt, ridicule, obloquy; or an adverse claim about plaintiff regarding one of the following categories: plaintiff’s ability in her business, trade, or profession; suffering a loathsome disease; crime of moral turpitude; unchaste woman.

Private person need only show defendant was negligent.

A public figure or public official must show defendant knew statement was false or had reckless disregard of its truth or falsity.

Intrusive conduct into plaintiff’s private affairs, and intrusion is offensive to a reasonable person.

Defendant publishes and attributes to plaintiff things she did not say or do. False light must be objectionable to a reasonable person. For matter in public interest, malice by defendant must be shown.

Defendant publicly exposes plaintiff’s private information, and must be objectionable to a reasonable person. Exception if legitimate public interest.

In Washington cannot use plaintiff’s identity or name for commercial advantage without consent.

Prima facie case requires showing defendant owed a duty of care to plaintiff, defendant breached that duty, and breach was actual (“but for”) and proximate cause of plaintiff’s harm resulting in damages.

Breach of duty occurs when act or omission falls below the standard of care defendant owed plaintiff.

If driving while intoxicated.

• Plaintiff must show that type of accident generally
• does not occur without negligence, defendant was in exclusive control over the instrumentality causing harm; and plaintiff was not at fault.

Private nuisance is unreasonable interference with plaintiff’s use and enjoyment of her land.

Public nuisance is unreasonable interference with the health, safety, or property rights of entire community, and plaintiff had special injuries not suffered by the public at large.

Not nuisance if permitted by zoning ordinance.

Damages, and/or an injunction for use where money damages are an inadequate remedy.

Plaintiff must show harm was foreseeable and an objective manifestation of distress.

Applies to direct victim if defendant knows of their existence, or to bystander if close relative of the victim and was at scene of accident or shortly thereafter.

Duty of care is owed to foreseeable plaintiffs.

Reasonable person standard is where person’s conduct is measured against what average person would do.

Duty to act like a child of like, age, experience, intelligence, and education. Incapable of negligence if under 6.

Must possess and exercise the knowledge and skill of a member of the in good standing in same locality.

In Washington, must exercise degree of care, skill, and learning of a reasonably prudent health care provider in same profession in state of Washington.

Must have informed or implied consent, otherwise battery.

Care of reasonable person with same physical characteristics.

Objective standard for mentally ill, but subjective reasonable person standard for contributory negligence or for sudden onset with no prior warning.

Relaxed standard of care as a reasonable person’s decisions in an emergency situation, unless defendant’s own prior negligence created the emergency

Duty of extraordinary care, liable for slight negligence.

Exempt from liability for voluntarily rendering emergency treatment, unless grossly negligence or willful and wanton misconduct.

Breach of duty imposed by statute, ordinary, or administrative rule is a prima facie cause of negligence to be considered by trier of fact.

Duty of slight care if bailment for bailor’s benefit; extreme diligence if bailment for bailee’s benefit; ordinary care if for mutual benefit.

Duty to exercise reasonable care over common areas such as halls, walks, elevators that remain under her control. Landlord is liable for any injury resulting from a dangerous condition that could reasonably have been discovered and made safe. Landlord has a duty to warn tenant of latent defects.

Enters land with owner’s invitation, express or implied, for owner’s benefit.

Owner owes licensee a duty to warn of dangers known and reasonably should have known.

Enters land with owner’s express or implied permission for own president. Owner has duty to warn of known latent danger.

Enters land with no permission.

Owner owes no duty to warn of unknown or known dangers, only duty to avoid intentional torts and recklessness.

Landowner has duty to make safe any artificial condition that may entice young children who are incapable of understand the danger involved

No duty to help strangers in peril, unless defendant’s tort caused plaintiff’s peril, defendant’s actions increased risk of harm, or defendant has already undertaken to help

Compliance with industry custom is non-conclusive evidence of what reasonable person would do; and plaintiff can show non-compliance as non-conclusive evidence of negligence

Act or omission is cause in fact of an injury if the injury would not have occurred “but for” the act.

Negligent party is liable for all harm reasonably foreseeable to her and proximately caused by scope of her conduct.

Defendant is liable for all unforeseen injuries resulting from her conduct, but not for purely economic damages that could not have been foreseen.

Exists for each defendant where two or more negligent acts combine to proximately cause an indivisible injury to plaintiff.

Each defendant is liable for entire amount of damages if plaintiff is not at fault.

Natural occurrence or 3rd party’s action that comes between defendant’s negligent action and the plaintiff’s harm. [Defendant is liable if foreseeable/within scope].

A supervening cause cuts off the original defendant’s liability if cause of 2nd injury was result of an extraordinary natural event or intentional criminal wrongdoing by a third party.

Original defendant is proximate cause for rescuer’s injuries suffered during the rescue attempt; or if plaintiff attempts to rescue someone whose contributory negligence left them vulnerable.

If plaintiff sues rescuer for negligence, original defendant is liable as proximate cause.

Fire invites firefighters, thus original defendant is liable as proximate cause.

Plaintiff is entitled to compensation for all damages except punitive. Special damages include medical expenses, lost earnings, and impaired future earnings. General damages consist of limited amounts of pain and suffering. Has duty to mitigate.

No recovery if plaintiff is intoxicated and more than 50% at fault.

No recovery if plaintiff’s felony is a proximate cause of the her injury

Washington is a comparative fault state, and all tortfeasors are based on percentage of fault.

Defendant who pays more than her share can recover from other joint tortfeasors.

Plaintiff can still recover damages if she was negligent, but reduced to percent of her fault.

Plaintiff engages in activity with knowledge of risk; defendant only has limited duty of care.

For harms within purpose of statute enforcing strict liability.

Owner or possessor is strictly liable: for trespass by animals, except cats and dogs; for personal injuries inflicted by wild animals, unless plaintiff trespasses on private property; or personal injuries inflicted by domestic animals and defendant knows of animal’s dangerous propensities or negligently handled animal.

For public zookeeper, only negligence.

Strict liability if plaintiff is bitten in public, or private property as invitee or licensee

Involves serious risk of harm, risk is present regardless of the precautions taken, and is not a normal community. In Washington, applies to fireworks.

Same as negligence; [comparative fault: contributory negligence or implied assumption of risk]

Product injures plaintiff’s person or property, or poses risk of harm even if no actual harm.

Manufacture is strictly liable if product is not reasonable safe as constructed and defect caused the harm, or because product breached express and implied warranties and thus breach caused the harm

Product was basis of bargain, breach was material, and express warranty proven untrue.

Manufacturer is negligent if product is not reasonably safe as designed and defect caused the harm, or because adequate warning or instruction were not given and thus proximately caused the harm.

Product seller is not liable if it proves by preponderance of evidence: it followed custom, regulatory standards, or compliance with government spec; expiration of product’s “useful safe life;” or comparative fault by contributory negligence or implied assumption of risk.

3 years from the time plaintiff discovered or reasonably should have discovered harm

Violation if plaintiff in trade or commerce that affects public interest, engages in unfair or deceptive act, which causes injury to plaintiff in her business or property.

Plaintiff can be a competing business or affected consumer.

Violation if plaintiff in trade or commerce that affects public interest, engages in unfair or deceptive act, which causes injury to plaintiff in her business or property. Plaintiff can be a competing business or affected consumer.

• Consist of treble damages and attorney’s fees.
• No general damages, economic loss only.

4 years, but tolls during action bought by the Attorney General.

Employer is vicariously liable to third parties for torts committed by employee within the scope of employment, but not major deviations (frolic).

Employer is not responsible for torts of an independent contract; independent contract status is determined by the amount of control employer retains over employment.

For tort committed in the court of managing community property or during activity performed for the benefit of the community.

All partners vicariously liable for torts committed within the scope of the partnership.

No vicarious liability. Except for family car doctrine: parent's consent, express or implied, to drive family car, and car was actually driven by child.

Also, parent can be directly liable for own act of negligent entrustment.

• Parent is not vicariously liable unless child acts as parent’s agent. In Washington, parent is liable for a child’s intentional torts with a $5k cap.
• See Negligent Supervision - parent may be directly responsible for own act of negligent supervision.

Claim for pain and suffering of deceased only for surviving spouse, child, or dependant parent.

Beneficiaries can recover pecuniary damages and loss of consortium, but not for pain and suffering.

2 years – defamation, assault, battery, false imprisonment, nuisance

3 years – all other tort claims.

Medical Malpractice – 3 years from date of wrongful act, or 1-year from plaintiff’s discovery, whichever expires last

Date of Accrual – date of wrongful act for most torts. Date of discovery for fraud. For negligence, the date when plaintiff knows, or should have known of the injury.