Intention infliction of reasonable apprehension of immediate harmful or offensive contact
Intentional infliction of harmful or offensive contact of another without consent or privilege
- Intentional physical or psychological confinement
- of another
- within fixed boundaries
- for any period of time
- without consent or privilege
Intentional Infliction of Emotional Distress
- Extreme and outrageous conduct
- which is calculated to cause and
- which does cause severe emotional distress
- *distress=common law needed physical injury…. Modern law does not
- Outrageous: conduct that exceeds all bounds of decency tolerated in a civilized society. Continuous, repetitive conduct ↑ likelihood of finding outrageousness
- Common carriers (transportation co.s), innkeepers (hotels) have high duty to treat their patrons w/ respect, so anything they do could = outrageousness.
Trespass to Land
- entry upon land
- in possession of another
- without consent or privilege
Trespass to Chattel
- Interference with chattel (intermeddling)
- in possession of another
- without privilege or consent
- Exercise of wrongful dominion and control
- over chattel of another
- wihtout privilege or consent
- D's wrongful intent is transferred from the intended victim to actual victim
- or from the intended tort to the committed tort.
- or implied by law (save a life)
Reasonable belief of imminent danger, reasonable force used to repel attack
Defense of others
- Reasonable force used
- to protect 3rd person from harm
Defense of property
- Reasonable force is allowed
- where the intrusion by the other party is not privileged
Detention for investigation
- Reasonable grounds
- Reasonable time
- Reasonable force
- Reasonable investigation
- *Maj: will permit reasonable mistake
- Privilege to arrest
- *police officer has reasonable grounds
- *private citizen if actually committed
Re-entry of land wrongfully withheld
- Maj: no privilege to use force
- Min: allows reasonable force to regain possession
- Complete defense (no liability for damages)
- If p resists, D may use deadly force
- Entry must be reasonable
- *Incomplete defense (D is liable for damages)
Recapture of Chattel Wrongfully withheld
- Reasonable force permitted
- to recapture chattel
- *fresh pursuit
Defendant may be liable to plaintiff for negligence if it can be determined that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and that the plaintiff suffered damages which were actually and proximately caused by defendant’s breach.
- Standard of care that is owed to someone else
- Maj: according to Cardozo, the defendant owes a duty to act reasonable to the foreseeable plaintiff in a foreseeable zone of danger
- Min: according to Andrew, a defendant owes a duty to act reasonable to everyone
Special Duties (Neg)
- Violation of statute
- Guest Statute
- Omission to Act
- Duties Owed by Lessors of Land
Special Duties: Violation of Statute
- ICI+(criminal statute-civil liability)
- I:Intent of legislature
- C:Class of persons to be protected
- I: Type of injury suffered
- +:Evidentiary effect:
- Maj: Negligence per se/ Min: inference of neg / CA: Presumption of neg
- *Violation of statue can be used to prove contrib neg when P violates statue.
when conduct falls below the standard of care the defendant has breached his duty
- Duties owed:
- Unknown=no duty
- known=warn of known dangers
- Duties owed:
- Ordinary Care Required
- Owner must warn of known dangers or make safe
Duty ordinary care and must make reasonable inspection for dangerous conditions and must warn of all dangers and make safe for those who enter
- Accident doesn't normally happen w/out negligence
- Defendant must have exclusive control of instrument
- and the plaintiff cannot contribute to injury
Negligence per se
- Breach can be shown
- When an unexcused violation of statue
- Causes the sort of damage
- The statue was designed to prevent
- The defendants conduct was the direct cause of harm.
- "But for" the defendants act, the plaintiff would not have been injured
- Legal cause of harm
- "it is foreseeable that defendant would injury P"
- *test to determine liability of the defendant based on foreseeability
- Several defendants jointly engaged in negligent conduct
- Each defendant is liable even though only one actually inflicted injury
- Defendants acting entirely independent but whose acts have cause successive impacts to plaintiff resulting in a single indivisible injury to P
- Tortfeasors must attempt to disprove potential responsibility
- Plaintiff's conduct falls below standard of care owed to himself
- *at common law=complete bar to recovery
- *Beware of violation of statue (ICI+)
- Weighs the relative negligence of plaintiff and defendant and apportions blame accordingly *two types:
- Pure=plaintiff recover % no matter if the plaintiff was more negligent than defendant
- Partial= only allows if Plaintiff was equal to/less than 50% responsible but not greater
Assumption of the risk
- Plaintiff assumes the risk
- will be considered a bar to his action
- when he/she has knowledge, comprehension, appreciation of danger
- and voluntarily chooses to encounter it.
Last Clear Chance:
- P's contributory negligence
- will not be considered a bar to his action
- if D had the last clear change to avoid injury
Negligent Infliction of Emotional Distress
- Duty of care
- to prevent unreasonable risk of physical injury
- that would foreseeable result in severe emotional distress
- 1. that result in a personal witness injury to a close family member
- 2. where the plaintiff had been within the "zone of danger" for injury himself
Statue of Limitation
Two years for personal injury
- Extinguishes liability
- based on defendants status
- liability imposed regardless of fault
- keeping of wild animals (*type of injury)
- participating in ultra-hazadous/abnormally dangerous (serious harm can not be eliminated by due care) activities.
Strict Liability: Ultra hazardous/Abnormally dangerous activities
- Activity involve a high degree of risk of harm
- whether the risk can be eliminated by the exercise of reasonable care
- Whether the activity is a matter of common usage
- Whether the activity is appropriate to the place where is is being carried onand
- The value of the activity to the community.
- Employer is vicariously liable
- for an employee's tort committed
- in the course and scope of employment.
Joint and several liability
two or more tortious acts of the defendants combined
- Duty: reasonably inspect, discover and correct defect, duty to warn if the product is unreasonably unsafe
- *discuss: breach, actual cause/proximate cause, damages and defense
- *Manufacturing, Design and Warning defects
Manufacturing Defect (Products Liability-Neg)
- Defective product entered stream of commerce
- Product did not meet commercial expectations of ordinary consumer
- Product was not manufactured as intended due to manufacturers breach of duty of care.
Design Defect (Products Liability-Neg)
- (Risk/Utility Test)
- Manufacturer or supplier is liable if they known or should have known
- of a reasonable alternative design
- which would have eliminated/reduced danger
Warning defect (Products Liability-Neg)
- Duty breached by not givign adequate warnings and or instructions of the dangers
- not apparent to ordinary consumer in using the product
Products liability-foreseeable plaintiff
Under McPherson v. Buick, plaintiff does not have to be in privity
Product liability-strict liability in tort
- Duty: commercial supplier has an absolute duty not to introduce into the stream of commerce a defective product.
- Breach: defects in design, warning or manufacturing
- *design defect: Risk v. Utility: P must prove that a reasonable alternative design existed and that D could have used to prevent P's injury.
- The defect existed at the time the product left the D’s control (if the product moved through ordinary channels of distribution, there is a presumption that the defect existed at the time it left the D’s control).
- P is a foreseeable user making a foreseeable use of the product.
- Defense: comparative fault, scientifically unknowable risk, unavoidable unsafe product.
Strict Products Liability Defense-Misuse
Misuse by the P that is not foreseeable to D will bar P from recovery.
- implied warranty that the product is safe
- of average quality
- and safe in normal use when commercial supplier sells the product
Implied warranty of merchantability
- warrants goods to be of average and fair quality
- ie fit for normal ordinary purposes
- *Look to similar/like products in market, fit for the use intended, with emphasis on safety.
Implied warranty of fitness particular purpose
- Seller knows (or reason to know) of buyers intended use
- Buyer acting as an average reasonable person
- relies on sellers "special skills and knowledge"
- False defamatory statement
- published to 3rd person
- understood to be defamatory
- damaging plaintiffs reputation
- *slander-spoken (must prove special damages)
Defamation Per Se
- Defamation involving Crime
- Loathsome Disease
Defenses to Defamation
- Consent (complete defense
- Truth (complete defense) (D bears burden of proof).
- Absolute privilege: based on who the D is: remarks made by federal executive officials engaged in their official duty, in “compelled” broadcast, and between spouses (ex. husband communicates defamation re 3rd party to wife, no liability)
- Unreasoanble interference
- with the possessory interest of an individual
- in the use or enjoyment of property
- *Utility v. risk
- Unreasonable interference
- with a right common to the general public.
- Usually only a public official such as a DA has standing to abate of enjoin a public nuisance.
- Private party may have standing, however, if he has an injury different in kind from that of the general public.
- Intentional misrepresentation of an existing material fact made knowingly with the intent to induce P's reliance
- Plaintiff justifiable rely and incurs damage.
- False material representation of fact
- made with lack of due care
- intended to induce reliance
- proximately causes Plaintiff's damages.
Interference with Contract
- Words or actions by defendant
- with intention to interfere with Plaintiffs contract
- Resulting in damages
Interference with prospective advantage
- Words or actions by defendant
- intentionally interfere
- Initiation of criminal proceedings
- against Plaintiff
- terminated in Plaintiff's favor
- no probable cause/improper purpose
- plaintiff incurs damages
Abuse of process
- Intentional misuse of civil/criminal process
- with ulterior purpose
- calculated to damage plaintiff
Appropriation of Name/Likeness
- Unjust enrichment
- by use or theft of name or likeness
Shifts risk of loss from one defendant to the other
False light in the public eye
- Unauthorized use
- plaintiffs name/likeness
- which are false
- *false light must be highly offensive to reasonable person
Intrusion upon seclusion
- Unreasonable invasion
- of anothers
- reasonable expectation to privacy
- Those damages inherent with the injury.
- Past, present future pain and suffering
- Incidental to the injury
- Past, present, future economic losses, loss wages, and medical bills
Loss of Consortium
- Majority requires complete loss of companionship and intercourse between husband and wife for a definite period of time.
- Minority extends recovery to parent/child relationships.
Motion to Dismiss
- A motion to dismiss is a motion for failure to state a claim upon which relief can be granted. It challenges the legal sufficiency of the complaint.
- The moving party is asserting that on the facts pled in the complaint, no relief is possible under any legal theory
Attractive Nuisance Doctrine
- Landowner must exercise reasonable care to protect against reasonably foreseeable risks of harm to children caused by article conditions on the property.
- 1. D is aware of should be aware of the danger condition
- 2. D knows that Children enter the land
- 3. Children would not realize the danger of the condition
- 4. Risk of harm is great compared to the cost of eliminating the condition.
- circumstances where we want to encourage candor (job applications, letter of recommendation). If you limit yourself to matters relevant to the subject at hand, you are not liable for a reasonable misstatement of fact that is defamatory. But, qualified privilege lost if you deliberately spread lies about someone.
- Examples where QP applies: reports of official proceedings; statements in the interest of the publisher – defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.