91 terms

Torts (WA BAR 2011)

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Intent & Transferred Intent
Intent is the desire or knowledge to a substantial certainty that a particular consequence will happen if the D does a particular volitional act. D's intent can be extended to unintended consequences of an intentional tort. There can be a transfer of torts (e.g., intended assault, but committed battery); transfer of parties (e.g., intended to batter A, but battered B); or a transfer of torts and parties.
Battery
The intentional infliction of harmful or offensive contact with the P's person or something connected to his person.
Assault
The intentional act causes P to have apprehension of an imminent battery AND the D has a present apparent ability to achieve the battery.
False Imprisonment
Occurs when the D confines the P within an area bounded in all directions with no reasonable escape route of which the P is aware AND P is either aware of confinement or harmed by it.
Outrage (IIMD)
Occurs when P suffers severe mental distress caused by D's intentional or reckless behavior that is judged extreme and outrageous by P AND a reasonable person OR by P alone if D knows of P's special vulnerability (e.g., a power differential like employer-employee or adult-child).
Trespass to Land
Occurs when D intentionally (even if reasonably mistakenly) physically invades the D's land whether on, over, or under the land by means of a "method of invasion." (Includes going on land, causing other people to go on land, causing objects to go on, exceeding license to be on land.)
Trespass to Chattels
Minor interference with the P's personal property recoverable only in damages for repair or lost use.
Conversion
Intentional interference with the P's right of possession in the chattel that is serious enough in nature or consequences to warrant that the defendant pay the full value of the chattel in lieu of its return (i.e., forced sale). P can, alternatively, collect return of the chattel and damages as in trespass to chattels.
Consent
Willingness in fact or apparent consent.
Defense of Self
Reasonable force used to protect oneself against threat of bodily harm from another person. (Must be proportional to threat.)
Defense of Others
Reasonable force used to protect another against threat of bodily harm from another person. (Must be proportional to threat.)
Defense of Property
Reasonable (but never deadly) force may be used to protect real property from intrusion, personal property from seizure, or to eject a P from D's real property if a request is made to leave or if such a request would be ineffectual.
Recapture of Chattels
Reasonable (but never deadly) force may be used to recover D's personal property when the D acts in "hot pursuit."
Shopkeeper's Privilege
D shopkeeper has a privilege to use reasonable (but never deadly) force to detain P for a reasonable time for a reasonable investigation of possible shoplifting.
Private Necessity
D has the privilege to intrude on P's property interests in order to prevent a greater loss to D's own interests in person or property (provided D pays damages).
Public Necessity
D has the privilege to intrude on P's property interests in order to prevent a greater loss to an entire community of persons.
Authority of Law
A D police officer may use reasonable force (up to and including deadly force) to arrest P for a felony if D has a reasonable belief that the felony was committed and that P is the culprit, BUT reasonable force (not deadly force) to arest for a misdemeanor breach of peace committed in the D's presence.
Negligence
To prove negligence, a P must show that the D had a duty of care the breach of which was the actual and proximate cause of injury to P.
Duty of Care
A duty of care is an obligation to act with a certain standard of care when performing acts that could foreseeably harm someone. The requisite standard of care is usually that of a reasonable person (RP).
Duties of Children
Children are held to a subjective standard for children's activities. But children are held to the objective RP standard for adult activities (e.g., a child driving a car). Children under the age of 6 are held incapable of committing contributory negligence.
Duties of Professionals
For all professionals generally, the standard is that of an RP in the specialty within WA. For Medical Professionals, the P must put on an expert witness to detail the standard for the profession. Medical professionals also have a duty to disclose "material facts" regarding treatment under Informed Consent Doctrine. Doctors have implied consent for treatment in life-threatening emergencies. Doctors operating without consent commit battery.
Duties of the Physically Disabled
The physically disabled are held to the standard of an RP with that physical disability. There is no relaxed standard for mentally ill persons.
Duty in Emergencies
Unless the D's own negligence created the emergency, the emergency doctrine allows greater leeway (RP in an emergency standard).
Duties of Common Carriers/Innkeepers
Common carriers have a duty to avoid even the slightest negligence to passengers (note that there is a chance of aysmmetric duties when there is heightened duty to a passenger inside the car but normal RP duty to a pedestrian outside it).
Duties of Good Samaritans
Good Samaritans are liable only for gross negligence or willful/wanton behavior.
Duties of Bailors
If the bailment is held for the bailor's interests, the bailee has a duty of slight care (only gross negligence will violate duty); if held for mutual benefit, then ordinary RP duty (normal negligence standard); if held for bailee's benefit, then extreme diligence must be shown.
Statutory Standards
A statute can be adopted as the standard of care, which means violation of it can be used as evidence of negligence, if both the P and the type of harm are included in the legislative intent of the statute.
Landowners
An owner has a duty of reasonable care to make his land safe, to warn of danger, and to discover problems with the land for invitees (those with mutual dealings with the owner or a public invitee with express or implied invitation). An owner has a duty to warn licensees (social guests, those on land for own benefit) of any known latent (hidden) dangers. An owner has no duty to trespassers (on land without permission) except to avoid intentional torts and recklessness.
Attractive Nuisance
An owner has a duty to eliminate conditions that pose a danger to young children if: (1) the condition is dangerous in itself; (2) it is alluring to young children; (3) children can't comprehend the degree of danger; (4) the area is left unguarded and accessible to children; and (5) there is a reasonably practical way to make the condition safe without destroying the owner's purposes in using the land (e.g., put up a fence).
Affirmative Duty to Act
There is generally no affirmative duty to help strangers in peril. But there is a duty to act if the D's tort caused the peril, if the D has undertaken to help, or if D's actions increased P's risk of harm.
Custom and Usage
D's compliance with industry custom can be offered as nonconclusive evidence of what an RP would do just as D's noncompliance with custom can be offered by P as nonconclusive evidence of negligence.
Breach of Duty
If the D fails to act with the apposite standard of care, he breaches his duty.
Res ipsa loquitur
There is a permissive inference of negligence (jury can make the presumption) if the P proves: (1) the accident is the type that does not usually occur in the absence of negligence; (2) D is connected with the accident (i.e., controls the instrumentality of harm); and (3) P was not at fault.
Actual Cause
The breach is the actual cause of the injury if but for D's breach there would have been no injury to P.
Proximate Cause
D is liable for all harms that are foreseeable at the time of the D's negligent act (except D is also responsible for unforeseeable "thin-skull" plaintiffs).
Intervening & Supervening Causes
An intervening cause is an event that comes between the D's negligent action and the P's harm. It is a supervening cause (cuts off D's liability) if the human or natural intervening act was not foreseeable at the time the tort was committed. If it is foreseeable (e.g., medical malpractice in treating P's injuries from D's original tort), then the D is still liable for the harm. Criminal wrongdoing is often (though not always) unforeseeable and thus supervening.
Rescuer Doctrine
Danger invites rescue. If a rescuer is injured in attempting to assist an injured person, the D who caused the first injury is liable for injury to a rescuer.
Firefighter's Rule (Professional Rescuer Doctrine)
First responders cannot sue for negligence in the event they are injured in the course of rescue (rescuer doctrine) because they have assumed the risk as part of their profession.
Injury
Injury is harm to bodily integrity or property interests. There is NO liability for "pure economic loss."
Negligent Infliction of Mental Distress (NIMD)
Injury can include mental distress in three instances: (1) fright; (2) direct victim (where D has knowledge of P and the likelihood of mental distress resulting from his carelessness); and (3) bystanders (must be at the scene of the accident or arrive shortly thereafter and be a close relative of the victim).
Damages
Damages are law's translation of injury into money. Special damages are for losses that are monetary (wages, etc.) and general damages are for nonmonetary loss (pain and suffering, etc.).
Duty to Mitigate
P has a duty to mitigate (renumerative employment or curative or ameliorative medical treatment to which an RP would submit).
Collateral Source Rule
Damages are not reduced for sums received from third parties (e.g., insurers, the government).
Defenses
WA has a pure comparative fault system. Defenses can often reduce the amount of fault of the D and, therefore, his damages. Many defenses, however, do not act as a complete bar to liability.
Contributory Negligence
P is held to the level of care that an RP takes in respect to his own safety. (Special standards for children, disabilities, etc. still apply to contributory negligence.)
Comparative Fault
WA is a pure comparative fault jurisdiction, which means a P (who is not intoxicated and not felonious) can always recover something no matter how high his percentage of fault. Recovery is computed by reducing P's total damages by the percentage of fault that is attributed to him by the jury.
Express Assumption of Risk
P can assume the risk of D's negligence through language (usually a written release). The Assumption of Risk must actually cover the type of inury that occurs and may be void against public policy (cannot be substantively or procedurally unconscionable).
Implied Assumption of Risk
P actually knows of the risk, appreciates its magnitude, and voluntarily goes forward to "take his chances."
Intoxication and Commission of Felony
If the P is intoxicated and more than 50% at fault, he gets no recovery. If P is committing a felony that is a proximate cause of his injury, he gets no recovery at all.
Private Nuisance
Substantial and unreasonable interference by D with P's interest in the use and enjoyment of his land. Involves the balancing of the benefit of D's action against interference with P's use and enjoyment of his land.
Public Nuisance
D unreasonably interferes with the health, safety, or property rights of an entire community of people and P has special injuries that are not suffered by the public at large.
Remedies
Remedies for nuisance are damages and/or an injunction for continuing wrongs for which money damages are an adequate remedy.
Defenses to Nuisance
Legislative authority such as zoning regulations or "coming to the nuisance."
Animals (trespassing, wild, domestic, and dogs)
Strict liability for trespass of animals (except dogs and cats). Strict liability for injuries inflicted by wild animals unless P is a trespasser on private property. Negligence standard for domestic animals unless the D has scienter (knows of the animal's dangerous propensities). WA has a dog statute where there is strict liability if P is bitten in a public place or while on private property as a licensee or invitee.
Abnormally Dangerous Activities
Strict liability for harms caused by activities that are: (1) activities with a serious risk of harm; (2) have a high residual risk of harm regardless of the precautions taken; and (3) the activity is unusual.
Scope of Strict Liability
Strict liability is not absolute liability; liability extends to harms proximately caused by the activity (e.g., mother mink killing her kittens after blasting makes her nervous is not a foreseeable harm).
Product
Something of value capable of delivery produced for commerce sold by someone in the commercial chain of distribution of new products.
Manufacturers
Producers, remanufacturers, designers, and those who hold themselves out as manufacturers of goods (e.g., Sears). Does not include minor assembly.
Non-Manufacturers
Usually a retailer; an entity in the distribution chain who is not a manufacturer.
Migration
Nonmanufacturers can be liable on manufacturer theories of liabiity through "migration" when there is no solvent manufacturer within the jurisdiction of WA; when he provides plans/specs for the product and they cause defect; when they sell under their own trade name; or when the companies are integrated (e.g., Niketown, Apple).
Product Liability Claim (by Buyer, User, or Bystander)
A buyer, user/consumer, or bystander injured by a product may bring a claim for personal injury or property damage (but not pure economic loss, which is covered by the UCC).
Product Liability Against Nonmanufacturers
A nonmanufacturer can be liable for his own negligence, for breach of his own express warranty, and for fraud in relation to his product.
Product Liability Against Manufacturers
A manufacturer can be liable under a theory of "Strict Liability" for defective construction (single product defective); for breach of express or implied warranties (merchantability or fitness for purpose); or for "negligence," which means either a design defect or inadequate warnings or instructions.
Custom & Regulatory Standards
Evidence of custom and regulatory standards are admissible in evidence but not concusive.
Compliance with Government Contract Specifications
Compliance with government contract specifications is an absolute defense to products liability.
Useful Safe Life
There is no liability after the product's useful life, which is presumed to be 12 years (a rebuttable presumption that can be increased or decreased).
Statute of Limitations
3 years from time P discovered or reasonably should have discovered harm, causal relation to the product, and that the product may be defective.
Comparative Fault for CN and IAR
Contributory negligence and implied assumption of risk are treated as items of fault that can reduce P's recovery under the comparative fault statute. Product misuse does not absolve a manufacturer from liability if the misuse is foreseeable (e.g., Q-tip in the ear) but misuse may imply an absence of defect if it is extreme (e.g., use of hammer to brush teeth).
Defamation (Libel and Slander)
Defamation occurs when (1) a false and defamatory fact about the P; (2) was published to a third party; (3) damage to the P's reputation resulted; and (4) the D was at fault. Slander is spoken; libel is written (including "written" in video on YouTube, etc.).
Defamation of Public Figure
If P is a public figure, P must prove by clear and convincing evidence that D had actual malice (knowledge of falsity or reckless disregard for the truth).
Defamation of Private Figure Regarding a Public Concern
If P is a private figure, but the fact is a matter of public concern, then P probably must prove negligence and actual injury.
Defamation of a Private Figure on a Matter of Private Concern
If P is a private figure, and the fact is about a matter of private concern, P probably must prove negligence and damages may be presumed (particularly if actual malice is proved).
Absolute Privilege
Privilege from defamation is absolute in judicial proceedings, for legislators, executive duties, spouse-to-spouse, and legally compelled broadcasts.
Qualified Privilege
Privilege from defamation is qualified in reports of public proceedings, public interest, interest of D, interest of recipient, and common interest. Qualified privilege is lost if the fact is spoken with actual malice or D utters matters irrelevant to the privilege.
Intrusion on Plaintiff's Private Affairs
Act of prying by D (usually with some other tort like trespass) AND the intrusion would be objectionable to an RP.
Publication in False Light
D attributes to P things he did not say or do in a "false light" that would be regarded as objectionable to the RP. (Every defamation is a publication in a false light, but every publication in a false light need not be a defamation.)
Public Disclosure of Private Facts
D publicly exposes P's private information, especially if true, and the RP would object to its being made public. (There is a constitutional exception if making the information public for a legitimate public purpose.)
Appropriation of Plaintiff's Name or Picture
D's unauthorized use of P's name or likeness for D's commercial advertising (usually advertising or promotion of goods and services).
CPA Claim
The CPA prohibits unfair or deceptive acts in the conduct of trade or business that affects the public interest and injures a P in his business or property. Attorneys' fees and treble damages are available to the P.
Respondeat Superior
Master is vicariously liable if the servant commits the tort within the scope of his employment and in furtherance of the master's employment (no frolics). Primary liability can arise for negligent hiring or negligent supervision.
Partnership Liability
Each partner is both principal and agent to every other partner. Partners share joint and several liability for partnership acts.
Automobile Owner Liability
No liability to the owner of a loaned vehicle unless it is a family car or if the auto owner negligently entrusted the vehicle to an irresponsible driver.
Parent for Child
No vicarious liability to parents for children unless child is acting as parent's agent. Parents are vicariously liable for children's intentional torts up to $5,000. A parent may be primarily liable for negligent supervision of her children.
Joint & Several Liability Without P Fault
Joint tortfeasors are jointly and severally liable for the plaintiff's damages in the case of single, indivisible injuries. Liability is apportioned by cause in the case of divisible injuries. In cases of joint and several liability, if one party pays more than his share, he is entitled to contribution from the other tortfeasors.
Joint & Several Liability With P Fault
Under WA's comparative fault statute, the liability of each D is computed in accordance with his degree of fault.
Survival Actions
Actions brought on behalf of the decedent for harm done to him (can include his pain and suffering). Can only be brought by a surviving spouse or child, or dependent parent or sibling.
Wrongful Death
Action for harm done to beneficiaries of decedent for pecuniary damages and loss of consortium. Pain and suffering not available to beneficiaries.
Community Property and Family Issues
Torts committed for the benefit of the community are community liabilities. Intentional torts of one spouse lead to his own liability; separate property and one half of community property can be reached.
Statutes of Limitations
Two years for assault, battery, false imprisonment, nuisance, and defamation. Three years for everything else.
Misrepresentation or Fraud
P must establish by clear and convincing evidence that defendant made an intentional misrepresentation of false material fact to P, which induced justifiable reliance by the P in ignorance of its falsehood, and resulted in the P's injury.
Intentional Interference with Business Relations
Prima facie intentional interference with business relationships is proved by showing: (1) an existence of a valid contractual relationship between P and a third party or a valid business expectancy; (2) D's knowledge of the relationship or expectancy; (3) intentional interference by D inducing a breach or termination of the relationship or expectancy; and (4) injury.