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Battery Elements
- D must commit a harmful/offensive contact (Objective, reasonable standard)
- Contact must be with the P’s person
- Intent (including anything ‘connected’ to P)
- Causation
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Assault Elements
- An act by D creating a reasonable apprehension in P
- Of immediate harmful or offensive contact to P’s person
- Intent
- Causation
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Unloaded gun problem
- If P reasonably believes the gun is loaded, then it is an assault.
- “Apparent ability creates reasonable apprehension”
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Is fear enough to create a reasonable apprehension in P of immediate harmful or offensive contact to P's person?
- Mere fear is not enough. Knowledge of the threat is required (P must see it coming).
- Words are not enough. Conduct is required. Words can negate reasonable apprehension.
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False Imprisonment Elements & Definition of bounded area
- An act or omission on the part of D that confines or retrains P
- to a bounded area
- Intent
- Causation
- Bounded Area: no reasonable means of escape is known to P (even if way out exists, cannot be dangerous or disgusting)
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Intentional Infliction of Emotional Distress Elements
- An act by D amounting to extreme and outrageous conduct
- Intent or recklessness
- Causation
- Damages – severe emotional distress
- Definition of Extreme and outrageous: conduct that exceeds all bounds of decency tolerated in a civilized society (insults are not enough)
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Intentional Infliction of Emotional Distress Elements- Bystander case
- P may show either a prima facie case or:
- (i) P was present when the injury occurred
- (ii) P is a close relative of the injured person
- (iii) The D knew of facts (i) or (ii)
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Trespass to Land Elements
- Physical invasion of P’s real property
- Intent
- Causation
- Notes: D’s intent to enter the property is required, even if ignorant of trespass
- No damages are required
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Trespass to Chattels Elements
- An act by D that interferes with P’s right of possession in a chattel
- Intent
- Causation
- Damages (to possessory right is enough)
- Two types of interference:
- - Intermeddling (directly damaging) and
- - Dispossession (deriving P of lawful right of possession)
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Conversion Elements
- An act by D that interferes with P’s right of possession in a chattel
- The interference is so serious that it warrants requiring D to pay the chattel’s full value
- Intent
- Causation
- Note: Damages – FMV at time of conversion or possession (replevin)
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Defense to Intentional Torts - Consent
- must be valid, and D must have stayed within bounds
- Express consent - words granting D to act in a certain way (invalid if obtained through fraud/duress)(look for customary practice)
- Implied consent
- - apparent consent: reasonable person inference of P’s conduct and surrounding circumstances/customs
- - Consent implied by law: when act is necessary to save life/important interest in property
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Intentional Tort Defense - Self-defense, Defense of others/property
- Proper timing: Applies to preventing the commission of a tort (no preemption, no revenge)
- Reasonable belief that the threat is genuine (mistake is allowed)
- may use such force as is reasonably necessary to protect against injury
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Intentional Tort Defense - Necessity
- Public: D commits a property tort in an emergency to protect the community
- Private: D commits a property tort in an emergency to protect an interest of his own (not absolute immunity)
- - D will be liable for compensatory damages
- - D will not be liable for nominal/punitive damages
- - As long as the emergency persists, P may not throw D off land (right to sanctuary)
- Available when it is reasonably and apparently necessary to avoid threatened injury
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Defamatory elements
- D must make a defamatory statement that identifies P (tends to adversely affect reputation)
- D must 'publish' the statement (hold it out to others - one is enough - negligent publication is sufficient)
- Damage -
- - Libel: written down or otherwise memorialized (presumption of damages)
- - Slander per se: Oral statement related to business/profession; crime of moral turpitude; imputing unchastity to woman; loathsome diseases (presumption of damages)
- - Slander: P must show special damages (loss of business)
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Defenses to Defamation - absolute
- Consent
- Truth
- Communication between spouses
- Officers of the government in the conduct of their official duties
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Defenses to Defamation - qualified
- Where there is a public interest in promoting candid expressionRecommendations - include statements made to the cops
- - good faith
- - statement must be limited to that relevant to matter at hand
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Constitutional Defamation Case
- Involves something that is of public concern
- P must prove 2 extra elements:
- - P must prove falsity
- - P must prove Fault
- -- Public Figure Fault – knowingly false or utterly reckless
- -- Private Figure Fault - negligence as to the truth
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Privacy tort - appropriation
- D uses P's name or image for commercial purpose
- Newsworthy exception - not actionable if newsworthy
- Look for uses in advertisement, packaging, etc.
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Privacy tort - Intrusion
- Invasion of P’s physical seclusion in a way that would be highly offensive to an average person ex. wiretapping, peeping tom
- Must have legitimate expectation of privacy
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Privacy tort - False Light
- Wide-spread dissemination of a material falsehood about the P that would be highly offensive to the average person
- Tort of false gossip
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Privacy tort - Disclosure
- Wide-spread dissemination of confidential information about the P that would be highly offensive to the average person
- Tort of "true" gossip
- Newsworthy exception - not actionable if newsworthy
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Defense to privacy torts
- Consent - defense to all
- Absolute and qualified privileges to defamation - to false light and disclosure privacy torts
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Prima facie case of negligence
- Duty
- Breach
- Causation (factual and proximate)
- Damage
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Duty definition and considerations
- A duty on the part of D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury
- Must exercise as much case as a hypothetical reasonably prudent person acting under similar circumstances
- Owed to foreseeable victims inside the "zone of danger"
- Note: Danger invites rescue
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Reasonable Person Standard Exceptions
- 1) Superior skill/knowledge – standards becomes what that person
- - Superior skill – body of knowledge that makes D unusually experienced
- - Superior knowledge – can be an isolated nugget of fact (advanced knowledge of the danger)
- 2) Physical attributes, in some cases, can be relevant (person should know their own limitations)
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Negligence Claims against Kids
- Duty owed is of a child of similar age, intelligence, and experience under similar circumstances
- - Subjective Standard (pro-D)
- - Under 5 owe the world no duty of care - cannot be held liable for negligence
- - A child doing an adult activity use RPP (ex. driving anything with an engine)
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Negligence Claims against professionals standard and notes
- Standard: the same care as average members of the same profession
- Profession's custom sets the standard of care
- Average is not = to reasonable
- Standard is determined by national customs
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Premises Liability - 4 types of entrants - Duty owed to Unknown Trespasser
possessor owes no duty of care to unknown trespasser on the land
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Premises Liability - 4 types of entrants - Duty owed to Known Trespasser
- Duty owed only:
- when the hazard is an artificial condition
- that is Highly dangerous (capable of inflicting serious harm)
- the danger is Hidden (not open and obvious)
- Possessor knows about in advance
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Premises Liability - 4 types of entrants - Duty owed to Licensee
- Licensee – enter w/ permission but without economic benefit (ex. social guest)
- Condition must be concealed (hidden) from the licensee
- Possessor must have advanced knowledge
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Premises Liability - 4 types of entrants - Duty owed to Invitee
- Invitee – enter w/ permission and confer an economic benefit or enter into a place open to the public
- Condition must be concealed from the invitee
- Possessor knew or could have discovered from a reasonable inspection
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Premises Liability - duty owed to firefighter and police
- Firefighters and Police officers never recover
- – inherent risk of the job that is assumed
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Premises liability - Child trespassers
- Attractive Nuisance Doctrine: possessor must exercise reasonable prudence to avoid injuring trespassing children on the land with respect to artificial hazards
- P must show:
- - A dangerous condition on the land that the owner is or should be aware of
- - The owner knows or should know children frequent the vicinity of the condition
- - The condition is likely to cause injury (dangerous b/c child cannot appreciate the danger)
- - The expense of remedying the situation is slight compared to the magnitude of the risk
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Premises liability: Two ways to satisfy duty
- Fix the hazard
- Give an adequate warning (doesn’t work with small children)
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When is negligence per se available?
- Two part test for when P may use negligence per se:
- - The statute seeks to protect a class of persons to which he belongs
- - Statute seeks to prevent a risk of the same type as occurred in this case
- “Class of person, class of risk” test
- Unless: statutory compliance would be more dangerous or would be impossible under the circumstances (avoiding hitting a child by swerving into oncoming traffic)
- Note: Failure to pass the test is not fatal - litigated under RPP standard of care
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Duties to act affirmatively/rescue
- There is no duty to act affirmatively
- - No duty to rescue
- Two exceptions:
- - pre-existing relationship: legal/formal)(hotelier/guest)
- - D caused the peril
- Opting to rescue will be held liable if they do not rescue reasonably
- Once you undertake an activity, you have to do so as the RPP
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Negligent Infliction of Emotional Distress - Near miss cases
- P must show D’s negligence and
- D’s negligent act placed P in a zone of physical danger
- P must have suffered subsequent physical manifestations (ex. heart attack, miscarriage)
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Negligent Infliction of Emotional Distress - Bystander case
- Bystander cases: P must show D’s negligence killed/maimed X and
- P and X have a close family relationship (spouse, parent, child)
- Must have seen D injure/kill X
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Negligent Infliction of Emotional Distress - Relationship Cases
- In business relationship, P must show high probability that careless performance will produce emotional distress
- - Medical patient w/ doctor/lab giving false positive
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Res ispa loquitor
- When the plaintiff lacks information about what the D did wrong (doesn’t know what the actual breach was)
- P must show:
- - The accident is of a type normally associated with negligence
- - An accident of this type would normally be due to the negligence of someone in D’s position (D had control over the injury causing object)
- Prevents a directed verdict for D
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Elements of showing breach of duty
- Must identify conduct and give a reason why the conduct fell short of the standard of care
- Once the conduct has been show, there must be a sentence saying
- -"Plaintiff will argue that this is unreasonable because…”
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Two kinds of causation
- Factual Cause: "but for" - was D's activity a necessary link in the chain?
- Proximate Cause: "forseeable" - was the injury forseeable from the negligent conduct
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Factual Cause - Merged Cause Test
- two negligent D’s, two negligent activities merge to cause the injury
- Apply the Substantial Factor Test: Could each breach have caused the harm by itself?
- If yes, then D’s are jointly liable
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Factual Cause - Unascertained Cause case
- One injury, two potential tortfeasors equally capable of being the party causing the injury
- Burden of proof is shifted to D’s to prove by preponderance they are not liable
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Proximate Cause
- After showing duty, breach, and factual cause, the P must show that liability would be fair by not extending the factual causal link too far
- The limiting factor is the “forseeable” injuries from your negligent conduct
- Factors: Distance, Time, Number of intervening steps
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Proximate Cause - 4 types of cases where we go off precedent
- Injury is deemed proximate regardless: Intervening medical malpractice
- Intervening negligent rescue
- Intervening reaction and protection forces (stampede to avoid danger)
- A subsequent disease or accident
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Affirmative Defense to Negligence - Contributory Negligence
- D must show P failed to exercise proper case for P’s own safety
- -Standard of care for yourself: reasonable prudence
- -You should observe self-protective statutes
- Result: jury will be instructed to assign each litigant a number that reflects the degree of fault (P’s damages will be reduced accordingly)
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Strict liability - domesticated animals
- no liability for domesticated animal (cow, sheep, dogs)
- Exception – you have knowledge of violent propensity of a particular animal that causes harm (dog already bites a man, afterwards strict liability)
- Exception to exception – not to trespasser on your own land
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Strict liability - wild animals
- you keep wild animals, you are strictly liable for injuries
- safety precautions are irrelevant
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Abnormally Dangerous Activities
- foreseeable risk of serious harm even when reasonable care is being exercised
- - Cannot be made safe even with reasonable care
- - Not common in community where D conducts it
- Examples: blasting, toxic material, radiation
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Elements of Strict Liability for Defective Products
- D is a merchant (routinely deals in goods of this type)
- Product is defective
- Product not altered after leaving D's hands
- P was making a foreseeable use of the product
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Strict Liability for Defective Product - "Merchant"
- Casual sellers are not merchants
- Service providers are not merchants
- Commercial Leasor (rental car company can be held liable)
- Every party in a distribution chain is a merchant (and amenable to a suit)
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Strict Liability for Defective Product - Ways to prove product defect
- Manufacturing Defect: differs from others that came off assembly line in a way that makes it more dangerous than consumers would expect
- Information Defect: product has residual risks that cannot be designed out, consumers are unaware of those risks, and the product lacks adequate warnings
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Strict Liability for Product Defect - Product not altered
Element presumed satisfied if moved in ordinary channels of commerce
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Affirmative Defense to Strict Liability - Comparative Responsibility
Stupidity of the plaintiff will reduce the level of liability
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Definition of Nuisance
- Interference with someone’s ability to use and enjoy his property to an unreasonable degree
- Requirements: Intentionally, negligently, and significant interference
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