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Intentional Torts: Egg-Shell Plaintiff Rule / Incapacity Defenses
1. Ignore plaintiff's sensitivity to injuries.
2. No incapacity defense to intentional torts.
Intentional Torts: Seven Intentional Torts
3. False Imprisonment
4. Intentional Infliction of Emotional Distress
5. Trespass to land
6. Trespass to Chattels
Intentional Torts: When is Intent Satisfied? When is Causation Satisfied?
1. Intent: D wanted conduct to happen or was substantially certain it would happen.
2. Causation: D's conduct was a substantial factor in causing the result.
Intentional Torts: Seven Intentional Torts: Battery
1. Harmful or offensive contact; (injury or pain / contact offensive to a reasonable person)
2. To plaintiff's person; (anything connected to P)
3. Intent; and
Intentional Torts: Seven Intentional Torts: Assault
1. Act by D creating reasonable apprehension in P;
2. Of immediate harmful or offensive contact to P's person;
3. Intent; and
Intentional Torts: Seven Intentional Torts: False Imprisonment
1. Act or omission on part of D that confines or restrains P to bounded area;
2. Intent; and
- P must know he was confined.
- There must be no reasonable means of escape known to P.
Intentional Torts: Seven Intentional Torts: Intentional Infliction of Emotional Distress
1. Act by D amounting to Extreme and outrageous conduct;
2. Intent or recklessness;
3. Causation; and
4. Damages - Severe emotional distress
Intentional Torts: Seven Intentional Torts: Trespass to Land
1. PHysical invasion of P's real property
2. Intent; and
Intentional Torts: Seven Intentional Torts: Trespass to Chattles
1. Interference with P's right of possession in a chattel.
3. Causation; and
Intentional Torts: Seven Intentional Torts: Conversion
1. Interference with P's right fo possession.
2. Interference so serious D should pay full value.
3. Intent; and
Intentional Torts: Defenses: Three Intentional Tort Defenses
2. The Protective Privileges.
Intentional Torts: Defenses: Consent
1. Defense to all intentional torts.
2. P must have legal capacity to consent.
3. Fraud or duress will negate consent.
4. If D exceeds scope of consent he is liable.
Intentional Torts: Defenses: Consent: Express Consent
Explicit Words by the plaintiff giving consent.
Intentional Torts: Defenses: Consent: Implied Consent
Will arise from:
1. Custom or usage (P goes to location where this conduct is known to occur); or
2. D's reasonable interpretation of P's objective conduct and the surrounding circumstances.
Intentional Torts: Defenses: The Protective Privileges
1. Self Defense.
2. Defense of Others.
3. Defense of Property.
Intentional Torts: Defenses: The Protective Privileges: Self Defense
1. Reasonable belief of imminent harm.
2. Use of force proportionate.
Intentional Torts: Defenses: The Protective Privileges: Self Defense Florida Distinction
You are presumed to have a reasonable fear of death if someone breaks into your house or during a carjacking.
Intentional Torts: Defenses: The Protective Privileges: Defense of Property
You can never use deadly force to protect property.
Intentional Torts: Defenses: Necessity
1. Only applies to the three property torts.
2. Public Necessity.
3. Private necessity
Intentional Torts: Defenses: Necessity: Public Necessity
1. Committing a property tort during an emergency to protect the community, or significant group of people as a whole.
2. Absolute defense to liability.
Intentional Torts: Defenses: Necessity: Private Necessity
1. Committing a property tort during an emergency to protect his own interest or another person.
2. Legal Implications:
- D remains liable for compensatory damages.
- Immunized for nominal or punitive damages.
- As long as emergency continues P must allow D in a position of safety on the property.
1. Defamatory language (an allegation of fact that adversely affects reputation);
2. Of or concerning the P;
3. Publication by D to a 3rd person (D shared statement with at least one person other than P).
3. Damage to P's reputation (Libel, Slander)
Defamation: Damages: Lible
1. Defamatory statements are in writing.
2. Damages are presumed.
Defamation: Damages: Slander
1. Spoken defamatory statement.
2. Certain slanders get presumption of damages (any statement relating to:
1. Business or profession.
2. P has committed crime of moral turpitude.
3. Imputing unchastity to a woman.
4. P suffers from loathsome disease: leprosy or venereal disease ).
3. The rest you must prove actual economic loss.
4. Matters of Public Concern
Defamation: Defenses: Privileges: Absolute Privilege
No liability for:
1. comments made to your spouse.
2. comments made during legislative or court proceedings.
Defamation: Defenses: Privileges: Qualified Privilege
1. Recommendations on individuals.
- Honest and good faith belief in accuracy.
- Statement relevant to subject matter at hand.
Defamation: Defenses: A matter of public concern
1. P must prove fault
(For public figures, P must prove D knew statement was false and made it anyway OR acted recklessly. For Private Figures, negligence).
2. P must prove falsity (statement is false).
Defamation: Florida Distinction
Media defendant? There are no presumed damages.
Light Review of These Topics
3. False LIght
2. Negligent Misrepresentation
3. Inducing a breach of contract
1. Malicious prosecution
2. Abuse of process
Negligence: Duty: To Whom is a Duty Owed?
1. Owed to all foreseeable plaintiffs (those who are in the zone of danger ie. far away).
2. Rescuers to the danger you create.
Negligence: Duty: What is the standard level of care?
The same duty of care exercised by a reasonably prudent person in the same or similar circumstances.
Negligence: Duty: Exceptions to the Reasonably Prudent Person.
1. Superior skill or knowledge of a relevant subject matter the standard becomes a RPP with that skill or knowledge.
2. Physical characteristics of a D become part of the standard of care (ie. if someone is blind, a reasonably prudent blind person under the same or similar circumstances).
Negligence: Duty: Special Standards of Care: The Five Special Duty Standards
3. Premises Liability.
4. Negligence Per Se.
5. Duty to Rescue
Negligence: Duty: Special Standards of Care: Children and Professionals
1. Children (owe the duty of care a child of similar age, experience, and education under similar circumstances. Unless they are engaged in an adult activity).
2. Professionals (Professionals must exercise care of average members of that profession).
Negligence: Duty: Special Standards of Care: Premises Liability
1. Unknown trespasser (No Duty of Care).
2. Known or anticipated trespasser (Duty to warn of or make safe known artificial conditions if nonobvious and highly dangerous).
3. Licensees (Duty to warn of or make safe known conditions if nonobvious and dangerous) (licensees enter land with permission, but not to confer economic benefit).
4. Invitees (Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe)(There to economically benefit possessor of land)
Negligence: Duty: Special Standards of Care: Premises Liability: Satisfaction of Premises Liability
If there is a duty owed except in the case of Trespassing Children, property owner can satisfy duty by:
1. Fixing the problem.
2. Warning of the danger.
Negligence: Duty: Special Standards of Care: Premises Liability: Firefighters and Trespassing Children
1. Firefighters can never recover for inherent risks of their job.
2. Reasonable prudent care to protect against artificial conditions on the land.
Negligence: Duty: Special Standards of Care: Premises Liability: Florida Distinction
1. Licensee has been abolished. Social guests treated as invitees. All other licensees are treated as discovered trespassers.
2. Firefighters are treated as invitees.
Negligence: Duty: Special Standards of Care: Negligence Per Se
Statutes can set the duty standard when:
1. P if a member of a class of persons the statute is trying to protect; and
2. P must show some class of risk the statute is trying to prevent.
1. Statutory compliance is more dangerous than violation; or
2. Statutory compliance was impossible.
Negligence: Duty: Special Standards of Care: Negligence Per Se: Florida Distinction
Violation of motor vehicle code is only evidence of negligence, not negligence per se.
Negligence: Duty: Special Standards of Care: Duty to Rescue
No duty to rescue (act reasonably prudent under the circumstances) except for:
1. Special relationships (Innkeeper-Guest, Common Carrier-Passenger, Business Owner-Invitee).
2. Defendant caused the peril.
1. Must act reasonably prudent under the circumstances.
2. IT is as if Florida has no Good Samaritan Law.
Negligent Infliction of Emotional Distress: Three Types of NIED Cases
1. Near Miss Cases.
2. Bystander cases
3. Relationship Case
Negligent Infliction of Emotional Distress: Near Miss Cases
1. D's negligence placed P in the zone of danger.
2. P suffered subsequent physical manifestations of distress.
Negligent Infliction of Emotional Distress: Bystander Cases
Bystanders outside the zone of danger.
Can recover if:
1. Plaintiff and person injured are closely related,
2. Plaintiff was present at the scene, and
3. Plaintiff observed or perceived the event.
Florida doesn't require you to see it as it happens.
Negligent Infliction of Emotional Distress: Relationship Case
P and D are in a business relationship and
it is highly foreseeable that careless performance
will lead to significant distress.
1. ID wrongful conduct and explain why it is wrongful.
2. Did D deviate from the set standard of care?
Negligence: Breach: Res Ipsa
1. Accident occurs is one that is normally associated with negligence.
2. Accidents of this type are normally because of someone in D's position (exclusive control by D).
Negligence: Causation: Two TYpes
1. Actual Causation.
2. Proximate Causation
Negligence: Causation: Actual Causation
1. But-for Test, but for the breach P would be uninjured.
2. D can argue "Even-If" they did the act P would still have gotten hurt.
3. Substantial Factor Test.
Negligence: Causation: Actual Causation: Substantial Factor Test
1. Multiple Ds and a commingled cause.
2. If D's actions were substantial factor in the creation of the harm they can be held jointly and severally liable.
Negligence: Causation: Actual Causation: Unascertainable Cause
With multiple Ds and an unknown cause the burden shifts to each D to prove they weren't the cause of the harm.
Negligence: Causation: Proximate Causation
1. Question of foreseeability
2. Certain events are always foreseeable:
- Medical malpractice.
- Negligent rescue.
- Reaction forces (firing gun in crowded room, people run).
- Subsequent injuries because of harm.
3. Certain events are unforeseeable:
- Acts of god.
- Intentional torts.
- Criminal acts
Any physical, emotional, or economic damage, ignoring the plaintiff's sensitivities.
Negligence: Defense: List
1. Contributory Negligence.
2. Implied Assumption of the Risk.
3. Comparative Negligence.
Negligence: Defense: Pure Comparative Negligence (This is the default rule on the bar exam and in the state of Florida)
1. D alleges P did not engage in prudent care for their own safety.
2. Jury is asked to weigh what percentage each party is negligent.
3. Ps recovery is reduced by their percentage fault.
- If P was intoxicated and more than 50% negligent they recover no damages.
Strict Liability: List
1. Injuries caused by animals.
2. Abnormally dangerous activities
Strict Liability: Injuries Caused by Animals
1. No strict liability for domesticated animals unless the animal has dangerous propensities.
2. Florida Distinction: You are strictly liable for dog bites off your property and on your property unless you have a BAD DOG sign. Bad Dog Sign does not apply if you were negligent or the victim is six or under.
3. Strict liability for injuries caused by wild animals, or the victim's reaction to the wild animals.
Strict Liability: Abnormally Dangerous Activities
1. Creates foreseeable risk of serious harm even when reasonable care is exercised.
2. Activity is not common in area where D conducts it.
(Blasting, handling toxic chemicals, high dose radiation or nuclear activity, but not fireworks)
Strict Liability: Products
1. D must be a merchant.
2. Product is DEFECTIVE.
3. Product has not been altered since leaving Ds control.
4. Foreseeable use of the product.
Strict Liability: Strict Products Liability: Who is and isn't a merchant?
1. No strict liability for casual sellers;
2. Service providers no strict liability;
3. Commercial Lessors ARE MERCHANTS, like a rental car company;
4. Every party in a distribution chain is a merchant.
Strict Liability: Strict Products Liability: Types of Defects
1. Manufacturing Defect.
2. Design Defect.
3. Failure to warn.
Strict Liability: Strict Products Liability: Types of Defects: Manufacturing Defect
1. Product differs from all others
2. which makes the product more dangerous
3. than a reasonable person would expect.
Strict Liability: Strict Products Liability: Types of Defects: Design Defect
1. Risk of injury outweighs utility of design such that a reasonable person would not market the product.
2. P offers evidence of an alternative design which is safer and it costs the same and can be used for the same purposes.
3. Failure to conform to government regulations is a conclusive design defect.
Florida Distinction: Risk-Utility test rejected. Test is: Is the product more dangerous than a consumer would expect?
Strict Liability: Strict Products Liability: Types of Defects: Failure to Warn
1. Residual risks that can't be designed away.
2. Consumers are unaware and the product lacks adequate warning.
3. Adequate warnings must be prominent and comprehensible.
Strict Liability: Strict Products Liability: Product has not been altered since leaving Ds control.
1. Presumption that there is no alteration if it has moved through ordinary channels of distribution.
2. Used products do not benefit from this presumption.
Strict Liability: Strict Products Liability: Foreseeable use of the Product
1. Misuse isn't the question, the question is is the product being used in a foreseeable way.
Strict Liability: Affirmative Defense
1. Applies to all strict liability claims.
2. Comparative Responsibility
Strict Liability: Affirmative Defense: Comparative Responsibility
2. Independent Contractor
3. Owner of car-Driver of Car
Vicarious Liability: Employer-Employee
1. Employer can be held liable if injury was caused during scope of employee's employment.
2. Intentional torts are outside the scope of employment.
3. If use of force is part of the job, misuse of force is within the scope of employment.
4. Torts committed to serve the employer's interest, the employer is liable.
Vicarious Liability: Independent Contractor
1. Employers are not liable for actions of independent contractors.
2. Employer is liable for acts if the work being done is abnormally dangerous OR is a non-delegable duty (work done for the benefit or safety of the public).
Vicarious Liability: Owner of car-Driver of Car
1. No liability for someone else driving your car, unless you ask them to do something for you with the car.
2. Florida Distinction: Owner of car is liable for anyone driving with permission (doesn't apply to rental car companies).
Vicarious Liability: Parent-Child
Parents are not vicariously liable for the actions of their children.
Contribution vs. Indemnification
1. Contribution: When a co-defendant seeks money from another co-defendant because the first co-defendant had to pay full damages.
2. Indemnification: Employer who did nothing wrong, but had to pay for acts of employee.
1. Florida has abolished joint and several liability.
2. MBE you can recover 100% from any defendant.
3. Co-defendants must reimburse other co-defendants for the percentage of their liability.
4. Full reimbursement to employer who is held vicariously liable.
5. Strict Products Liability: merchants can get reimbursement from distributor.
Loss of Consortium
1. Loss of services.
2. Loss of companionship.
3. Loss of sex.
1. If owner of land knew or should have known that the kids trespass on the property,
2. the condition poses an unreasonable risk of harm
3. the kids because of their age or maturity do not appreciate the risk; and
4. the utility of maintaining the condition is slight compared to the risk to the kids.
Assumption of the Risk
P has knowledge of the risk and appreciates the risk.
Last Clear Chance Doctrine
P can still recover even if contributorily negligent if D had last clear chance to avoid the danger.
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