MBE Torts - WTF

• Act
• Intent
• Causation of harm

The actor acts with the purpose of causing the consequence; OR the actor knows that the consequence is substantially certain to follow.

• a person intends to commit an intentional tort against one person but instead commits:
• A different intentional tort against the same person;
• The same intentional tort against a different person; OR
• A different intentional tort against a different person.

a Defendant causes a harmful or offensive contact with the person of another; and acts with the intent to cause that contact or the apprehension of that contact

consent

causes injury, pain, or illness

a person of ordinary sensibilities would find offensive.  A Defendant may still be liable if aware that a victim is hypersensitive, but acts nonetheless.

result in contact of a harmful or offensive nature.  The act need not be direct. (e.g. placing thumbtacks on the seat of a chair.)

is sufficient if the contact is not consented to.  This also applied to transferred intent.

Nominal damages, since no proof of actual harm is required.  Many states also allow punitive damages, if the defendant acted maliciously, or with malice.

a defendant is liable for all harm thatflows from a battery, even if it is much worse than the defendant expected it to be.

placing the plaintiff in reasonable apprehension of an imminent harmful or offensive bodily contact.

reasonable, and the plaintiff must be aware of the defendant's action.

without significant delay.  Threats of future harm are not sufficient.

Nominal damages (no proof of actual damages is required), punitive damages (in some cases), any damages caused by the assault.

extreme or outrageous conduct causing severe emotional distress

The defendant must intend to cause severe emotional distress or at least act with recklessness as to the risk of causing severe emotional distress. Transferred intent does not apply.

consented

intent

allows shopkeepers to prevent suspected shoplifters from leaving the premises as long as the detention is for a reasonable time and effectuated in a reasonable manner. The reasonableness of a detention is based on the totality of the circumstances, and is the province of the fact finder.

exercise reasonable care to prevent further harm by rendering care or aid, including protection form the acts of another.

• (i) the accident was of a kind that ordinarily does not occur in the absence of negligence;
• (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and
• (iii) it was not due to any action on the part of the plaintiff.

yes

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

the defendant is liable for the full extent of the plaintiff's injuries due to the plaintiff's pre-existing medical condition or vulnerability, even if the extent is unusual or unforeseeable.

(i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and (ii) the threat of physical impact caused emotional distress.

special relationship

strict products liability

determine whether the risks posed by the product outweigh its benefits.

the product is defective (i.e., it contains a manufacturing defect, contains a design defect, or contains inadequate instructions or warnings); the defect existed when the product left the defendant’s control; and the defect caused the plaintiff’s injury when used in a reasonable way.

failure to warn (A defect exists if there were foreseeable risks of harm, not readily recognized by an ordinary user of the product, which could have been reduced or avoided with reasonable instructions or warnings.)

service providers

• of or concerning the plaintiff,
• is published to a third party who understands its defamatory nature; and
• damages the plaintiff’s reputation.

fault on the part of the defendant as well as the falsity of the statement.

is known to the general public and includes any person who has voluntarily injected himself into the public eye.

actual malice on the part of the defendant, as well as the falsity of the language.

that the defendant knew that the statement or language was false, or he recklessly disregarded its truthfulness. To establish a reckless disregard for the truthfulness of a statement, the defendant must have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient.

The full value of the property at the time of the conversion

Reckless - (in this context, "reckless" means conduct outside the normal scope of the sport)

proportionate force

accidental

Reasonable force—may be used if the person reasonably believes it is necessary to prevent tortious harm to the property.  Deadly force cannot be used, or the use of booby-traps

"reasonable force"

• A felony has been committed, AND
• the arresting party has reasonable grounds to believe the person being arrested committed the felony
• Reasonable mistake as to identity is permissible, but not a mistake as to whether the felony was actually committed.

• Must reasonably believe a felony has been committed and that the person arrested committed it.
• An officer who makes a mistake as to whether a felony has been committed isnot subject to tort liability

an intentional interference with the plaintiff's right to possession of personal property either by: dispossessing the plaintiff; or using or damaging the plaintiff's chattel

• Only the intent to do the interfering act is necessary
• Defendant need not have intended to interferance with another's possession of intangible property
• Mistake about the legality of the action is not a defense

• For dispossession, the plaintiff may recover actual damages caused and loss of use
• For use and intermeddling, the plaintiff can only recover actual damages, including diminution in value or the cost of repair

the defendant intentionally commits an act depriving the plaintiff of possession of his or her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.

the plaintiff can recover the chattel's full value at the time of conversion

• The duration and extent of the interference;
• Defendant's intent to assert a right inconsistent with the rightful possessor;
• Defendant's good faith;
• Expense or inconvenience to the plaintiff; and
• Extent of the harm

the defendant intentionally causes a physical invasion of someone's land. Defendant need only have the intent to enter the land or cause the physical invasion. No proof of actual damages is required.

available to a person who enters onto the land of another or interferes with their personal property to prevent an injury or to prevent another severe harm.  There are two kinds of necessity: private and public.

• The defendant must pay for actual damages that he has caused.
• The landowner may not use force to exclude the person.

• Private property is intruded upon or destroyed when necessary to protect a large number of people from public calamities.
• NOT liable for damages to the property

an activity that substantially and unreasonably interferes with another's use and enjoyment of land. If the conduct that interferes with the use and enjoyment of land is unintentional,then the plaintiff must show that the conduct was negligent. If the conduct that interferes with the use and enjoyment of land is intentional, then it will be considered a nuisance if it is more than the plaintiff should have to bear.

If you move somewhere knowing about a conduct, courts are hesitant to allow youto complain that that conduct unreasonably interferes with your use and enjoymentof the land. NOT a complete defense—one factor considered by the court

• An unreasonable interference with a right common to the public as a whole
• The plaintiff has been harmed in a special or unique way, different from the public
• If something is interfering with the right of the public as a whole, presumptively the public agencies should deal with it

If he or she acted knowing that the consequence was substantially certain to occur.

• When a person intends to commit an intentional tort against one person, but instead commits:
• 1) The intended tort against a different person;
• 2) A different intentional tort against that person; or
• 3) A different intentional tort against a different person

Battery, assault, false imprisonment, trespass to land, and trespassto chattels; but does not apply to the tort of intentional infliction of emotional distress

• 1) Defendant causes a harmful or offensive contact with the person of another; and
• 2) Acts with the intent to cause such contact or the apprehension of such contact.

Assault is the plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant's action or threat with the intent to cause either the apprehension of such contact or the contact itself.

A defendant is liable for intentionally or recklessly causing severe emotional distress with extreme or outrageous conduct.

• When a person acts:
• 1) Intending to confine or restrain another within fixed boundaries;
• 2) Those actions directly or indirectly result in such confinement; and
• 3) The other is either aware of the confinement or is harmed by it.

A person may use reasonable force to defend against an offensive contact or bodily harm. The force used in self-defense must be reasonably proportionate to the anticipated harm.

One is justified in using reasonable force in defense of others upon reasonable belief that the party would be entitled to use self-defense. The force must be proportionate to the anticipated harm.

• A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property. Deadly force may not be used merely in defense of property.
• If someone uses deadly force in defending their home, it is only valid if in the process of defending their home they reasonably believe themselves, their families, or others to be in danger.

• Intentional interference with the plaintiff's right to chattels (i.e., tangible personal property) by either:
• 1) Dispossessing the plaintiff of the chattel; or
• 2) Using or intermeddling with the plaintiff's chattel.

A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff's damages are the chattel's full value.

When defendant intentionally causes a physical invasion of land.

Yes. The defendant need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass. In other words, mistake of fact is not a defense.

A defendant who acts to prevent a threatened injury or harm has the privilege to enter onto the property of another and to use that property in that way. The property owner cannot use self help to exclude the defendant as a trespasser.

The property owner is entitled to recover actual damages even though the defendant is not a trespasser.

A person enters onto the land in order to protect a large number of people from a calamity, such as the spreading of a fire. He is not liable for any damage to the property.

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

A public nuisance is an unreasonable interference with a right common to the public as a whole.A public agency is empowered by statute or regulation to take action to abate the public nuisance.

Duty, Breach, Causation, Damages

to act as a person of ordinary prudence would act under the circumstances.  There is no duty to act affirmatively.

foreseeable victim

• 1) A person voluntarily aids or rescues another
• 2) A person places another in danger, even non-negligently
• 3) To perform contractual obligations with due care
• 4) One with actual ability and authority to control another
• 5) Defendants with a special relationship to plaintiffs (e.g.,common carrier-passenger; innkeeper-guest)

A reasonably prudent person under the circumstances

An objective standard

The standard of care imposed upon a child is that of a reasonable child of similar age. However, a child engaged in an adult activity is held to the same standard as an adult

• 1) The likelihood of the harm
• 2) The severity of the harm
• 3) the precautions that could have been taken

Evidence of custom in a community or industry is relevant evidence to establish the proper standard of care, but it is not dispositive

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill,knowledge, and care as another practitioner in the same community

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment.Failure to do so constitutes a breach of the physician's duty.

• 1) When a statute imposes upon a person a specific standard of care;
• 2) Defendant is liable if the person injured is in the class of persons protected by the statute;
• 3) The harm is the type of harm that statute is intended to prevent;and
• 4) The violation of that statute was a proximate cause of the harm.

Traditionally, common carriers and innkeepers were held to the highest duty of care consistent with the practical operation of the business.

A majority of courts continue to hold common carriers to this higher standard. However, mostcourts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence.

These statutes limited the liability of drivers to passengers in their cars. They held drivers liable only if they had been guilty of gross negligence or wanton or willful misconduct.

• 1) trespasser
• 2) licensee
• 3) invitee

• 1) Trespasser: none, except to not engage in willful, wanton, or reckless disregard for their safety
• 2) Licensee: Duty to warn of hidden dangers
• 3) Invitee: duty of ordinary due care

• A land possessor may be liable for injuries to children trespassing on the land if:
• 1) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass;
• 2) The land possessor knows or has reason to know that the condition poses anunreasonable risk of death or serious bodily injury to children;
• 3) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
• 4) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children;and
• 5) The land possessor fails to exercise reasonable care to protect children from the harm.

• Circumstantial evidence can be sufficient to show negligence. Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:
• 1) The accident was of a kind that ordinarily does not occur in the absence of negligence;
• 2) It was caused by an agent or instrumentality within the exclusive control of the defendant;
• 3) It was not due to any action on the part of the plaintiff.

If several people take care of a patient and one may have been negligent, but the plaintiff cannot say which one, then the courts will shift the burden to those defendants, holding them jointly and severally liable unless they can present evidence of which persons were negligent.

• 1) Cause in fact
• 2) proximate cause (or "scope of liability")

If the plaintiff's injury would not have occurred but for the defendant's negligence, then the defendant's conduct is a factual cause of the harm.

The plaintiff must show that the causal connection was not too remote, estranged or attenuated.

They ask whether the harm is the kind of risk that made the defendant's conduct negligent

in the business of selling or otherwise distributing products of the type that harmed the plaintiff. Included as a seller are the manufacturer of the product, its distributor, and its retail seller. As long as the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product even if the seller was not responsible for the defect in any way.

the child commits a tort while acting as the parents’ agent, or when a statute establishes the parents’ liability. Parents, however, are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.

a third party either intentionally or negligently.

precluded from recovering if he is more at fault than the defendant.

pure comparative negligence

the defendant's defamatory language concerning the plaintiff is published to a third person who understands its defamatory nature, and such language damages a plaintiff's reputation.

the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, without the plaintiff’s consent, for the defendant’s commercial advantage, and resulting in injury to the plaintiff. Here, the maker used the reporter’s distinctive voice and signature phrase without the reporter’s consent, to the maker’s advantage, and to the financial detriment of the reporter.

"extreme and outrageous conduct."  Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. Courts are more likely to find a defendant’s abusive language and conduct to be extreme and outrageous if the plaintiff is a member of a group with a known heightened sensitivity (e.g., a pregnant woman).

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

enters the land of another by invitation, often, but not necessarily, for the business purposes of the landowner. A landowner owes the greatest duty of care to invitees: he is under the same obligations owed to licensees (duty to warn and to use reasonable care), but he also must conduct reasonable inspections of his property and make the property safe for the protection of invitees. A landowner is liable for any negligence that causes an invitee to be injured due to unsafe conditions.

each tortfeasor who causes a single indivisible harm is jointly and severally liable for the entire amount of damages suffered by the plaintiff,

intrusion upon seclusion

a party's contributory negligence will not act as a complete bar to recovery. The party's full damages are calculated by the trier-of-fact and then reduced by the proportion that her fault bears to the total harm.

(i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm.

the defendant’s intentional act causes a physical invasion of another’s land. The defendant need only have the intent to enter the land or cause a physical invasion of the land, not the intent to commit a wrongful trespass.

(i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff.

(i) the defendant provided false information, (ii) as a result of the defendant’s negligence, (iii) during the course of his business or profession, (iv) causing the plaintiff to justifiably rely upon the information, and (v) the plaintiff either is in a contractual relationship with the defendant or is a third party known by the defendant as one for whose benefit the information is supplied.

(i) the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, (ii) for the defendant’s advantage, commercial or otherwise, (iii) lack of consent, and (iv) resulting injury.

(i) intending to confine or restrain another within boundaries fixed by the actor; (ii) those actions directly or indirectly result in such confinement; and (iii) the other is conscious of the confinement or is harmed by it.

reasonable belief that the defended party would be entitled to use self-defense.

(i) the product was defective, (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injury when used in an intended or reasonably foreseeable way. While misuse of a product is not an automatic bar to recovery, the particular misuse must be foreseeable.

the defendant caused harmful or offensive contact to the plaintiff’s person, and that the defendant acted with the intent to cause the contact.  “Harmful or offensive” contact is any contact that a reasonable person, measured by an objective standard, would find harmful or offensive.  A defendant intentionally causes the contact if he acts with the desire to bring about the harm or engages in action knowing that the harm is substantially certain to occur.  An employer is vicariously liable for an employee’s torts if the employer has the right to control the activities of the employee.

physical deviation from what the manufacturer intended the product to be that causes harm to the plaintiff.  The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.

• that the product was defective,
• the defect existed when it left the defendant’s control, and
• the defect caused the plaintiff’s injuries when used in an intended or reasonably foreseeable way.

A person may use reasonable force to defend against an offensive contact or bodily harm that he reasonably believes is about to be intentionally inflicted upon him. A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, which is likely based on these facts, does not invalidate the defense.