Prima Facie P Must Prove

TORTS

Intentional
Prima Facie – P must prove
Act – volitional
Intent
specific
general – substantial certainty
transferred
intent to commit a certain tort against one person is transferred to the person actually injured
swing at B intending to punch him but miss and punch C
assault, battery, false imprisonment, trespass to land, trespass to chattels
Everyone is capable of intent – incapacity is not a good defense
Young children and mentally incompetent will be liable for their intentional torts!
Causation
result legally caused by D’s act or something set in motion by it
substantial factor in bringing about the injury
Battery
Harmful or offensive contact
reasonable person standard
offensive = not consented to
contact – direct or indirect (poisoning food)
To P’s person
Assault
Act creating a reasonable apprehension in P
apprehension does NOT mean fear
it means knowledge that you are about to be subject to an unpermitted touching
the P must believe that D has the ability to in fact deliver the unpermitted touching
Immediate harmful or offensive contact
NOT threat of future harm
must be imminent
False Imprisonment
Confine or restrain
physical barriers, force, THREATS of force, failure to release, invalid legal authority
P must be aware of the restraint and harmed by it
To a bounded area
freedom of movement limited in all directions
no reasonable means of escape known to P
dangerous escape route is unreasonable
IIED
Extreme and outrageous conduct
conduct not otherwise extreme and outrageous could be come so if
continuous
directed towards a fragile class of persons
children, elderly, pregnant, supersensitive persons IF the hypersensitivity is KNOWN to D
lesser conduct w/b extreme if committed by common carriers and innkeepers
Intentional or reckless
Causing severe emotional distress
third party
where D causes physical injury to one person and severe emotional distress to a third person if
she was present
close relative of injured
P knew she was present and she was a close relative
Trespass to Land
Physical invasion
by person or object (toss a ball onto P’s land)
vibrations and odors are not physical invasions!
intent
D need only intend to enter on that particular piece of land (regardless of whether he knew it was someone else’s)
An involuntary presence on the land will not constitute the req intent
Of P’s land
Trespass to Chattels
Interference
Without permission
Another’s personal (not real) property
Conversion
Dominion or control
more than mere interference
req’s D to pay full value of prop – not the cost to repair
Another’s personal property
Without permission
Defenses
Consent
Only one w/ legal capacity can validly consent
express consent
exceptions
mistake if D knew of and took advantage of mistake
consent induced by fraud or duress
implied consent
even in absence of express consent, a reasonable person would infer such consent from custom and usage or P’s conduct
contact sports
consent that is necessary to save a life or important interest in property
exceeding consent
if D exceeds scope of consent, he may be liable
Self-Defense
reasonable belief
she is being or about to be attacked
may use such force as is reasonably necessary to protect against injury
need not retreat but might need to retreat before using deadly force if can be done safely
except in your own home
may be extended to injuries to third parties caused while actor was self-defending
reasonable mistake allowed
Defense of Others
reasonable belief
other person could have used force to defend herself
may use such force as she could have used if she was the person in jeopardy
Defense of Property
prevent the commission of a tort against her real or personal property
does NOT apply once tort committed
unless in hot pursuit of another who stole your property
not available against one w/ a privilege
deadly force NEVER allowed
however, do not confuse “home defense” b/c what you are really defending is your person = self-defense
Privilege of Arrest
police - must have reasonable belief that felony committed and this is the asshole who did it
citizen
felony must have actually been committed and reasonable belief this is the perp
misdemeanor must have been committed in arresting person’s presence
Necessity
person may interfere with the real or personal property of another
when it is reasonably and apparently necessary to avoid threatened injury from natural or other force
and when threatened injury is substantially more serious than the property invasion
public necessity – for the good of the community
private necessity – to save your own shit
actor is liable for damage to other’s property
except no nominal or punitive
actor remain on other’s property as long as emergency continues
if ejected before cessation of emergency, ejector will be liable for actor’s injury
Harm to Economic and Dignitary Interests
Defamation
elements
D’s statement of fact about the P
Defamatory in nature
Published
False
Negligence
Harms P’s reputation
Cannot defame a dead person
Libel
written
P does NOT need to prove special and general damages
Slander
spoken
P must prove special damages unless
Defamatory per se
improper professional conduct
criminal accusation
loathsome disease (leper or VD)
unchaste woman (single and not a virgin)
First Amendment Concerns
when P is public official/figure
P must prove malice
D knew statement was false, or
Reckless disregard as to whether it was false
when P is a private figure but the matter is of public concern
standard is negligence
must be actual injury
P must prove falsity
when P is a private person and matter is not public
not a constitutional issue
negligence standard
D must prove truth
Defenses
consent
truth
REMEMBER – falsity and fault only apply to public figure and public speech cases
P does not need to prove falsity in common law defamation b/c defamatory statements are presumed false
D has burden to prove true
absolute privilege
remarks made during
judicial proceedings
legislators in debate
fed executives
btw spouses (about anything and anybody)
qualified privilege
when “socially useful occasions” encourage open communication
employment rec’s
statements made to police during investigations
Invasion of Right to Privacy
Appropriation
use of P’s name or picture for commercial purp’s w/o permission
Intrusion
prying or intruding
objectionable to the average person
into P’s seclusion
when he has a reasonable expectation of privacy
False Light
MASS: no such thing
widespread dissemination of a major misrepresentation about P
objectionable to average person
c/b defamatory or non-defamatory
need not be deliberate
good faith is irrelevant – if you blab, you pay
private facts
widespread dissemination of confidential information about P that w/b objectionable to average person
Newsworthiness Exception
Negligence
Prima Facie
Duty
Breach
Harm
Actual and Proximate Causation
Duty of Care
Foreseeable P’s
A duty of care is owed to all foreseeable P’s
Cardozo/Majority View – where D breaches duty to P1 and also causes injury to P2, P2 can recover only if she can prove that a reasonable person would have foreseen a risk of injury to her under the circumstances (Palsgraf – zone of danger)
Specific Sit’s
Rescuers – is a foreseeable P where D negligently put himself or another in peril (in other words, the D invited rescue)
Prenatal Injuries – a duty of care is owed to a viable fetus
Standards of Care
The Reasonable Person
Objective standard – conduct measured against the average person
D’s mental deficiencies and inexperience are NOT taken into account (even stupidity)
However, reasonable person is considered to have the same physical characteristics as D (IMPORTANT – even though we take into account the D’s physical deficiencies (blindness), we hold the D to know his deficiencies and exercise appropriate care (reasonably blind person))
Particular Standards of Conduct
Professionals – reasonable person w/ superior knowledge (in his field of specialty)
Children
Measured against a child of like age, education, intelligence and experience (subjective test – from kid to kid to kid)
Under 4 years of age cannot be negligent b/c he owes society no duty of care
Children engaged in adult activities may be req’d to conform to adult standards
Operating a vehicle w/ a motor = adult standard of care)
Owners and Occupiers of Land
Duty of possessor to those OFF premises
no duty to protect one off the premises from natural conditions on the premises
is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land (trees on premises – falling branches)
activities carried on the premises must be done w/ reasonable care so as to avoid unreasonable harm to others outside the property
Duty of possessor to those ON premises
Trespasser
Undiscovered trespassers – no duty
Discovered or anticipated trespassers – warn of
Artificial conditions
Involving risk of serious harm
That are concealed
And known to owner
MASS: only two categories
Unlawful occupants – recklessness standard
Lawful occupants – reasonable prudence
Attractive Nuisance
dangerous artificial condition on land that owner is or s/b aware of
owner knows or s/ know kids frequent the vicinity
condition is likely to cause injury BECAUSE KID IS UNABLE TO APPRECIATE RISK (if the child in the question appreciates the risk, no liab to owner)
expense of remedying slight compared to risk
Licensees
invited guests
possessor must
warn of dangerous cond’s
that he knows about
and guest is not likely to discover herself
NO duty to inspect or repair
Invitees
customer, public building, paying guests)
possessor must
duty to reasonably inspect
duty to repair (make safe)
duty to warn
exceeding scope of invitation surrenders invitee status
Firefighter’s Rule
police and fire never recover for injuries that are inherent risk of the job
even if D was negligent to cause emergency
MASS: does not recognize the FF Rule
Police and fire can recover if D was negligent
Users of Recreational Land
landowner who permits general public to use land for this purpose w/o charging fee is NOT liable for injuries
unless
landowner willfully and maliciously failed to guard against or warn of a dangerous cond or activity
Duties of Lessor and Lessee of Realty
Lessee has general duty to maintain premises
Lessor must warn of
existing defects which he is or s/b aware
which he knows the lessee is unlikely to discover on reasonable inspection
if lessor covenants to repair, he is liable for any unreasonably dangerous cond’s
if lessor volunteers to repair and does so negligently, he will pay
Satisfying Duty
Where there is a duty, owner can satisfy by
fix problem, or
warn
Statutory Standards of Care
Uses criminal statute in lieu of (to replace) general negligence standard
evidence of violation is negligence per se
reasonableness becomes irrelevant
statute must
be criminal
clearly define standard of conduct
P m/b w/in protected class
statute was designed to prevent type of harm suffered by P
excuses for violating statute
compliance would cause more danger than violation
compliance would be beyond D’s control
MASS: such statutes are evidence only of negligence
not evidence per se
D may rebut it
Duty – NIED
Breached when
Unreasonable conduct
Severe emotional distress
PHYSICAL injury to P
Except
Erroneous report of relative’s death
A mishandling of a relative’s corps (clown in the casket case)
Third Party
generally, a bystander who sees D negligently injuring another cannot recover for her own distress
except
P and injured person are closely related
P was present at scene
P observed the injury
MASS: recognizes bystander NIED
Bystander witnessed incident or comes upon scene shortly thereafter
Affirmative Duties to Act
assumption of duty by acting
once you come to another’s aid, you must do so w/ a reasonable duty of care
Peril Due to D’s Conduct
If your conduct put her there (innocently or negligently), you have a duty to assist
Special Relationship BTW Parties
Parent-child, husband-wife
Common carriers, innkeepers, shopkeepers
MASS: good samaritan law shields doctors, nurses, emt’s, police, and fire ONLY from ordinary negligence (not gross neg)
Breach
Res Ipsa Loquitur
the very occurrence of an event may tend to establish breach of duty
used by P who cannot id wrongful conduct
P must show
Accident causing injury is not the type that would normally occur unless someone was negligent
Negligence is attributable to D
Instrumentality was in D’s sole control
effect
establishes P’s prima facie case
P can still lose if inference of negligence is rejected by trier
In other words, RIL creates a permissive inference only
Causation
Actual Cause (cause in fact, but for)
injury would not have occurred but for the DE’s breach (NOT whether the D caused it but whether D’s breach caused it)
D’s response (and a good check on “but for” causation is “even if D had been careful, P still would have been injured”
joint causes
where several causes bring about injury and any one of them alone would have been sufficient, D’s conduct is cause in fact if it was a “substantial factor” in causing injury (merging fire illustration)
did each D contribute to ultimate injury in a substantial way? – if “yes, joint liability
alternative causes
where two acts, only one of which causes the injury, but don’t know which one
burden shifts to D’s to prove that his negligence is not the actual cause
two hunters shoot but no idea which bullet killed victim
otherwise, joint liab
Proximate Cause (legal cause, foreseeable)
scope of foreseeable risk
D is generally liable for harmful results that are the normal incidents of and w/in the increased risk caused by his acts – foreseeable test
Direct Cause
Where there is an uninterrupted chain of events from the negligence act to P’s injury, D is liable for all foreseeable harmful results
Most harmful results will be foreseeable in direct causes cases
Indirect Cause
Here, an affirmative intervening cause comes into motion after D’s negligence act and combines with it to cause P’s injury
D is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm P
dependent = subs medical mal, negligence of rescuers, efforts to protect person or prop of oneself or another, subsequent disease or accident caused by original injury
independent
may be foreseeable if D’s negligence increased the risk of harm from these forces
negligent acts of third person, crimes and intentional torts of third person, acts of God
Unforeseeable Extent or Severity of Harm
“eggshell-skull P” rule - D takes his P as he finds him
D is liable for all damages, incl aggravation of an existing cond, even if extent and severity of damage was unforeseeable
Equity
First, establish that there has been a tort and the P is entitled to relief
To grant an injunction
no adequate remedy at law ($$$)
D has none
The harm is impossible to measure
Conduct is continuous and money will not stop it
the tort involved implicates a protectable interest
as long as there is a tort, this is satisfied
the injunction, if granted, would be enforceable
out of state?
balance the hardships
benefit to P will be greater than harm to D
if injunction granted, ct could also award $$$
defenses to injunction
unclean hands (P’s hands)
laches
prejudicial delay by P
sort of like SOL’s
P stood by and watched damage accumulate before he finally filed suit
First Amendment
If injunction MIGHT conflict w/ free speech, forget it
Defenses to Negligence
Contributory negligence – P gets nothing if he has any fault
NOT a defense to intentional torts or willful and wanton
“last clear chance” – permits P to recover despite her contributory negligence if D had the last clear chance to avoid accident
This is the P’s defense to contributory negligence
Assumption of risk
NOT a defense to intentional torts BUT is a defense to willful and wanton
Comparative Negligence
Each party’s damages are reduced by that party’s respective percentage of negligence – pure comparative negligence
Many states allow P to recover only if her negligence was less than 50% - partial comparative negligence
MASS: “partial comparative fault” – P’s fault over 50% is complete bar to recovery
Strict Liability
Animals
Trespassing animals – owner strictly liable for reasonably foreseeable damage done
Personal Injuries
Wild animals – owner strictly liable to licensees and invitees for injuries caused by dangerous propensities of wild animals as long as injured didn’t bust the animals balls to incite the response
Domestic Animals – owner is not strictly liable for injuries unless he has knowledge of that particular animal’s dangerous propensities that are not common to the species
Landowner may be liable on intentional tort grounds for injuries caused by vicious watchdogs
MASS: owner strictly liable unless victim is trespasser or victim teasing animal
Ultrahazardous Activities
Req’s
activity must involve risk of serious harm
cannot be performed w/o risk of serious harm no matter how much care is taken
the exam will give you a bunch of bullshit about safety precautions – they ARE irrelevant
not commonly engaged in in the particular community
Products Liability
Common elements – P must show
Defect
When it left the mfg
Types of defects
Manufacturing
if product emerges from manufacturing different and more dangerous that the product made properly
quality control is irrelevant
to prove:
P shows that product failed to perform as safely as an ordinary consumer would expect
D MUST anticipate reasonable misuse)
Also applies to food products
Design
when all products of the line are the same but have dangerous propensities
can you imagine an alternative design that is
safer
cost effective to produce
just as easy to use and for the same purpose
Inadequate Warnings
the danger must
not be apparent to users
could not be designed any other way
the absence of an adequate warning in essence is what makes the product design defective
Government Safety Standards
product’s noncompliance w/ govt safety standards establishes that it is defective
compliance, however, is only evidence that the product is not defective
Nuisance
Private
Substantial, unreasonable interference
P’s