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Select Topics - Torts

Terms in this set (72)

Vicarious Liability (VL)
Employers (principals) are vicariously liable for the NEGLIGENCE of their employees (agents), committed while the employee was acting within the scope of their employment

VL is NOT a defense for e'ee who must indemnify the e'er/principal.
VL - Detour v. Frolic
E'ers are VL for the frolic of e'ees but not the detours.
VL - Intentional Torts (IT)
IT by e'ees are NOT within the scope of employment u/VL unless [FFF]
VL - IT - FFF
1) FORCE is authorized by e'er (e.g. a bouncer)
2) FRICTION is generated by the employment (e.g. bill collector)
3) FURTHERING the business of the e'er (e.g. removing customers from premises b'c they are rowdy)
VL - Independent Contractors (IC)
Generally, principals/e'ers are not VL for ICs with two exceptions: [1) IDA 2) ND]
VL - IC - IDA? ND?
1) IC is engaged in Inherently Dangerous Activities (eg excavating next to public sidewalk, blasting, etc)

2) The duty is simply Non-Delegable (eg duty to keep premises safe; car maintenance)
Intentional Torts (IT)
ABFTIAM

ITs require the intent to do the act, NOT the intent to cause the harm. (eg hitting someone in the face-you intended to cause contact. It is irrelevant you didn't intend to break their jaw)
IT - ABFTIAM
1) Assault
2) Battery
3) False Imprisonment
4) Trespass to Chattel/Conversion
5) Intentional Infliction of Emotional Distress
6) Abuse of Process
7) Malicious Prosecution
IT - Assault
1) A volitional act, done with intent to cause harmful or offensive contact OR an apprehension(fear) of imminent harmful contact or offensive contact, which
2) Causes the reasonable apprehension (fear) of harmful or offensive contact
IT - Battery
1) A volitional act done with the intent to cause harmful or offensive contact or an apprehension (fear) of imminent harmful or offensive contact that
2) causes harmful or offensive contact
IT - False Imprisonment
1) An act intended to confine someone withing set boundaries, fixed by the actor that...
2) Directly or indirectly results in confinement (eg threat if future harm in not confinement, but threat of immediate harm is)
3) The confined person is aware of the confinement OR harmed by it
IT - False Imprisonment (Defenses)
Shopkeeper Privilege - reasonable grounds to believe theft occurred, may detain one for a reasonable time and in a reasonable manner to ascertain what happened

Crime Prevention - reasonable belief crime has occurred. Must involve disrupting the peace.
IT - Trespass to Chattel/Conversion
1) An act which is the intermeddling or dispossession of another's personal property, which
2) Causes harm to OR loss of the use of that property

Conversion - the interference is serious enough in result to entitle D to pay the full value of the chattel/property at the time of conversion.
IT - Intentional Infliction of Emotional Distress (IIED)
1) Intent to cause severe emotional distress, AND
2) Extreme and outrageous conduct that causes severe emotional distress

Physical harm is NOT required.
IT - IIED - Negligent IIED
Same as IIED PLUS physical harm.
IT - Abuse of Process
Prohibits the use of any form of process to bring about a result other than which the process was intended.

1) Use of a legitimate process
2) for a wrongful purpose (harass, waste time)
3) And an act or threat against P to accomplish the wrongful purpose
IT - Malicious Prosecution
1) Initiation of a civil/criminal proceeding against a person
2) w/o probable cause
3) for a wrongful purpose
4) and the proceeding is terminated in favor of that person
Negligence (5)
DBAPH
Negligence - DBAPH
1) Duty
2) Breach
3) Actual Cause
4) Proximate Cause
5) Harm
Negligence - Duty
"When a person engages in an activity, they have a duty to act as an ordinary, prudent, reasonable person."
Negligence - Breach
"Where D's behavior falls below that level required by the applicable standard of care."

Not enough to say D breached his duty... Explain why. (eg "D breached his duty to drive the car reasonably when he drove 20mph over the speed limit")
Negligence - Res Ipsa Loquitor (RIL)
Discuss ONLY if the act constituting breach is UNKNOWN

1) Ds had control of the instrumentality of the harm
2) harm would not have occurred in the absence of negligence
Negligence Per Se
Where a CRIMINAL statute establishes a statutory duty and breach discuss Per Se Negligence:

1) Criminal statute (including traffic, safety, & regulatory infractions)
2) P must be a member of the class of persons intended to be protected by the statute; AND
3) the claimed harm must be the type of harm the statute intended to protect against

- NOT a separate cause of action. May simply sets the standard of care(duty) for the full negligence analysis (DBAPH).
Negligence Per Se - Analysis Outline (7)
D[OOSS]APH
Negligence - Duty of Land Owners (LO) - Off Premises
Generally, a land-owner owes NO DUTY to protect someone outside their premises from either natural or artificial conditions on the land.

2 exceptions for Artificial conditions:
1) A duty to protect from unreasonable artificial conditions
2) Duty to take precautions to protect persons passing by from dangerous condition
Negligence - Duty of LO - On Premises
Duty depends on classification of person:
1) Invitees - on premises for business purpose of LO
2) Licensees - on premises for own purposes
3) Tresspassor

Only give rule for one that applies
Neg - Duty of LO - Invitee
"Duty to inspect, discover, repair, and protect against all known or discoverable dangers."

LO is liable IF & ONLY IF:
1) Knows or by exercise of reasonable care, should've discovered, the condition and should realize it poses an unreasonable risk of harm to invitees; AND
2) should expect the invitee will not discover or realize the danger or will fail to protect themselves against it; AND
3) Fails to exercise reasonable care to protect them against the danger.
Neg - Duty of LO - Licensee
Duty to repair and protect against known dangers

Liable I&OI:
1) Knows or has reason to know of the condition and should realize it poses an unreasonable risk of harm to l'ee, and should expect the l'ee will not discover or realize the danger; AND
2) Fails to exercise reasonable care to make the condition or to warn the l'ee of the condition and risk involved; AND
3) the l'ee do not know or have reason to know the condition and its risk
Neg - Duty of LO - Tresspassor
Duty only extends to ARTIFICIAL dangerous conditions

Known trespassers - duty to warn of artificial non-obvious dangerous conditions maintained by LO

Unknown trespassers - Duty not to use willful and wanton conduct
Neg - Duty of LO - Attractive Nuisance
1) LO knows or should know of the dangerous condition.
2) LO knows children frequent the area
3) Dangerous condition is likely to cause harm - child's inability to assess risk
4) Expense of remedy is slight compared to level of risk
Multiple Duties?
ON ESSAY - Make sure you discuss each one under "Duty" section and "Breach" section.
Other Duty Issues
Firefighters - bars firefighters/police from recovering for injuries caused by risk of doing job.

Common Carriers - hightened duty of care but not strict liability

Rescuees - duty to rescuers if the need for the rescue is due to r'ees own negligence

Custom - custom/usage in an industry may be evidence of a duty or lack of duty
Negligent Infliction of Emotional Distress (NIED)
Generally no duty to prevent emotional distress in the absence of physical harm and P not in zone of danger.

Exceptions:
1) P and victim related, P present and perceived the injury to relative
2) Duty arises from special relationship
3) Mishandling of corpse of relative
4) False statement that relative has died
Negligence - Actual Cause
The "BUT FOR" test.

Always applies UNLESS JOINT CAUSES (any of which alone would have caused the harm). If JC, then apply the "substantial factor" test.
Negligence - Proximate Cause
"Palsgraf Case - Whether this type of harm was foreseeable from this type of conduct"
Negligence - Harm
ESSAY - Include a sentence on harm... "P was harmed b'c she suffered physical injuries to herself and her car."
Negligence - Defenses
CCAE
Negligence - Defenses - CCAE
1) Contributory Negligence - Complete bar UNLESS D had last clear chance
2) Comparative fault - Pure v. Non-pure comparative
3) Assumption of risk
4) Emergency
Nuisance
Public - Common public interest; no CoA unless harm is different in kind from that suffered by public

Private - 1) an unreasonable invasion of another's use or enjoyment of their land; AND 2) the invasion is either intentional or unintentional/negligent, reckless, or abnormally dangerous conditions or activities.
Trespass
"Entry onto or remaining on another's land w/o permission to so."
- Mistake is NOT a defense
- In most jxs, harm is not required, but in that case only nominal damages awarded
- Remedy is often injunction
Strict Liability
Animals:
1) Ds owned wild animals, 2) that caused harm to P of the kind typically due to the wildness of the animal

Abnormally Dangerous Activities:
1) Carrying on of abnormally dangerous activities
-(subE-High degree of risk/harm; gravity of harm; inability to eliminate the risk by reasonable care)
2) which causes harm
3) the risk of which makes the activity abnormally dangerous
Products Liability (PL)
3 theories (mention all 3):
1) Strict products liability
2) Negligence
3) Breach of warranty
PL - Strict Product Liability
1) D is in the business of selling/distributing products (commercial supplier)
2) D sells or distributes a defective product and that product remains unchanged
3) the defect causes the harm
PL - Strict Products Liability - Defect (3)
MDF
PL - Strict Products Liability - Defect - MDF?
1) Manufacturing Defect - an error in assembly causes the product to depart from design

2) Design Defect - Risk v. Utility analysis OR feasible alternative design

3) Failure to warn Defect:
- knows or has reason to know
- that the product is likely to be dangerous for the use for which it is sold
- has no reason to assume the user will realize the dangerous condition
- fails to adequately and sufficiently warn about the dangerousness of the product
PL - Negligence
DBAPH
PL - Negligence - DBAPH?
1) Duty - to make a safe product, owed to user if reasonably certain to cause peril to user, AND to others if likely to be used by others w/o inspection/tests
2) Breach
3) Actual cause
4) Proximate cause
5) Harm
PL - Breach of Warranty
EII
PL - Breach of Warranty - EImIf?
1) Express warranty
2) Implied warranty of merchantability
3) Implied warranty of fitness (for particular purpose)

"Fault Free" - even if D did everything right, if the goods are not as warranted, D is in breach and owes P damages.
PL - Breach of Warranty - Express Warranty (3)
1) Expressly made by affirmation of fact
2) Relied on by purchaser
3) Breach causes harm to foreseeable person
PL - Breach of Warranty - Merchantability? (4)
- Average quality
- Fit for ordinary purpose
- Adequately packaged
- Conforms to promise on label
PL - Breach of Warranty - Fit for a particular purpose? (2)
- Seller knows of Ps special need
- Recommends product with that knowledge
PL - On Exam
Be sure to cover: 1) Strict liability, 2) Negligence, then 3) Warranty
Defamation
DCPH
Defamation - DPH?
1) Defamatory statement about P
- Not opinion unless based on assertion of fact
- Slander = Oral
- Libel = Written or broadcast
- hearers/readers know it refers to the P
2) Published to a third person
3) Harms reputation of P - requires proof of special damages
Defamation - Defenses (2)
TP
Defamation - Defenses (2) - TP?
1) Truth - Complete defense
2) Privilege - Absolute or qualified
Defamation - Defenses - Absolute Privilege? (5)
A stmnt made in: PLJAI
Defamation - Defenses - Absolute Privilege - PLJAI
Absolute Privilege - a statement made in:
1) the proper discharge of an official duty
2) legislative proceeding
3) judicial proceeding
4) any other official proceeding authorized by law; OR
5) the initiation or course of any other proceeding authorized by law
Defamation - Defenses - Qualified Privilege? (3)
A stmnt made W/O MALICE, and to a person with interest:
1) By one who is also interested, OR
2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive was innocent, OR
3) who is requested by the person interested to give the information
Defamation - Defenses - 1st Amdt
If 1st amdt defenses discuss:
- Falsity of the defamatory statement AND
- Fault

Public official or Public Figure as P?
- P must prove the stmnt was false and the D acted w/ malice (ie knew it was false, or reckless disregard for the truth)

Private P, but matter of public concern? (usually media defendant)
- Requires D made the false stmnt negligently; for presumed/punitive damages it requires malice
Invasion of Privacy (4) [IPFA]
1) Intrusion
2) Public disclosure of private fact
3) False Light
4) Appropriation
Invasion of Privacy - Intrusion
1) Unreasonably and seriously interferes with another's interest in not having affairs known
2) The conduct would offend a person of reasonable sensibilities
Invasion of Privacy - Public Disclosure
1) Public disclosure
2) of a private fact
3) that would be offensive and objectionable to a reasonable person
4) that is not of legitimate public concern
5) Constitutional Issue: no liability if truthful information obtained legally
Invasion of Privacy - False Light
1) D publicizes a private matter concerning P
2) that places P in a false light before the public
3) That would be HIGHLY offensive to a reasonable person
4) and, IF matter of public concern, D acted with malice (knowledge or reckless disregard for the truth and the false light)
Invasion of Privacy - Appropriation (ID theft)
Protects ones pecuniary interests.
"An appropriation or use of P's identity by D for D's commercial purposes."
Misrepresentation (3) [INC]
1) Intentional Misrepresentation
2) Negligent Misrepresentation
3) Concealment
Misrepresentation - Intentional
1) D made false representation re a presently existing material fact
2) Scienter - that the D either a) knew was false, b) made recklessly, knowing he had insufficient knowledge
3) for the purpose of inducing another party to act on the misrepresentation
4) that the other party actually relied on it
5) was thereby induced to
Misrepresentation - Negligent
1) D made false representation re a presently existing material fact
2) Scienter - D should have known the truth or was careless in ascertaining the truth
3) for the purpose of inducing another party to act on the misrepresentation
4) that the other party actually relied on it
5) was thereby induced to act
Misrepresentation - Concealment
1) D made a representation re a presently existing material fact but omitted material facts, which omission makes the statement misleading
2) Scienter - the D knew was misleading
3) for the purpose of inducing another party to act on the misrepresentation
4) that the other party actually relied on it
5) was thereby induced to act
Interference w/ Economic Relationship
"Interference which is intentional and improper or unlawful in a K between two other persons causing one of them not to perform."
Tort Damages
Economic damages for physical injury to self or property.

Punitive damages only available if D was malicious or willful.

Tort damages must be:
- Causal
- Foreseeable
- Reasonably certain
- Unavoidable
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