Karteikarten
TORTS
Karten in diesem Stapel (190)
- 1Establishing Tort LiabilityCan the plaintiff establish a prima facie case?
If so, does the defendant have any affirmative defenses available?
Consider vicarious liability. - 2Elements of a prima facie case for INTENTIONAL TORTSACT - a "VOLITIONAL" movement: seizures are not volitional but reflexes are.
INTENT - General: Substantial Certainty Test - "An actor intends his consequences if he knows with substantial certainty that these consequences will result. Specific: PURPOSE - "Actor intends consequences if his purpose is to bring about those consequences.
CAUSE - was the D's conduct a SUBSTANTIAL FACTOR in bringing about the result? - 3CAPACITYEVERYONE has the capacity to have the intent to commit a tort.
Beware of the incapacitated D fact pattern and answer that D can't be liable because he lacked capacity. This is NOT correct.
Generally, there is a presumption of capacity. - 4TRANSFERRED INTENTRULE: Intent can be transferred from PERSON to PERSON and from TORT to TORT.
Options: Different tort against same person. Same tort against different person. Different tort against different person.
Rule of Transferred Intent Applies To:
(1) Battery (2) Assault (3) False Imprisonment
(4) Trespass to Land (5) Trespass to Chattels
NOT IIED - 5SUPERSENSITIVE PLAINTIFFPlaintiff's supersensitivities are IRRELEVANT.
UNLESS, the D KNEW of those supersensitivities.
SO . . . treat the P as an AVERAGE person w/ AVERAGE sensibilities. - 6Intentional Torts: BATTERYHarmful or offensive contact with the plaintiff's person + Intent + Cause
Apprehension of contact is NOT necessary. - 7Battery: OFFENSIVE CONTACTContact is offensive if it is UNPERMITTED - Would a reasonable person of ordinary sensibilities find the contact offensive? Remember the SUPERSENSITIVE P rule.
Harmful Contact: Injury, pain, disfigurement. - 8Battery: WITH PLAINTIFF'S PERSON And Other Plaintiff ConsiderationsContact to anything CONNECTED to P's body is sufficient.
Construe "PLAINTIFF'S PERSON" liberally.
Plaintiff does NOT need to be apprehensive of D's contact. - 9Battery: CAUSE Note on DamagesD is liable for direct contact and indirect contact. For indirect contact D must SET IN MOTION A FORCE that brings about harmful or offensive contact.
Damages: Not part of prima facie case; P can recover NOMINAL damages even if he suffered no serious harm; majority of jurisdictions allow for PUNITIVE damages when D acted w/ MALICE - 10Intentional Torts: ASSAULTApprehension of an immediate battery
+ Intent + Cause - 11Assault: APPREHENSIONThe P's apprehension must be REASONABLE so apply the reasonable person test and remember the SUPERSENSITIVE P rule.
P must be AWARE of the conduct but apprehension does NOT equal fear or intimidation. P does not need to know who D is at time of assault.
APPARENT ability creates reasonable apprehension; the D does NOT have to have the ACTUAL ability to commit the tort. - 12Assault: IMMEDIACY Words Rules Proof of Damages?The threat was be IMMEDIATE.
The WORDS Rules
1. Words alone are NOT enough.
2. You need words COUPLED with conduct (pointing gun at P, "you're money or your life")
3. BE CAREFUL: words can also UNDO conduct and any reasonable apprehension.
Not necessary to prove actual damages, P can recover nominal damages and most states allow punitive damages when D's action is malicious. - 13Battery v. AssaultBATTERY WINS!
- 14Intentional Torts: FALSE IMPRISONMENTThere must be a SUFFICIENT ACT OF RESTRAINT in a BOUNDED AREA
+ Intent + Causation - 15False Imprisonment: SUFFICIENT ACT OF RESTRAINTTOC/COMMON SENSE ANALYSIS
1. Physical Barriers/Physical Force
(directed against him, member of his family,
or his property)
2. Direct /IndirectThreats of Force ARE enough - For indirect threats, apply reasonable person test.
3. Actual application of force is NOT required.
4. INACTION (failure to provide means of escape) is enough IF there was an understanding that D would do something. (Express OR Implied). So, courts impose an affirmative duty on D to take steps to release P
5. Invalid Use of Legal Authority (arrest w/o a warrant, but remember privileged arrests)
6. Time of confinement is irrelevant; even a short period is enough.
7. Awareness Requirement: P must KNOW of confinement AT THE TIME of confinement UNLESS the confinement actually injures P.
8. Moral pressure and future threats are NOT enough.
9. P does NOT need to resist force. - 16False Imprisonment: SUFFICIENT ACT OF RESTRAINT - SHOPKEEPER'S DETENTIONShopkeeper can detain a person w/o liability for false imprisonment if he (1) reasonably believes the person committed the theft, (2) the manner of detention is reasonable (no deadly force), and (3) the detention was for a reasonable amount of time.
- 17False Imprisonment: BOUNDED AREA Note on DamagesP's freedom of movement in ALL directions must be limited.
Mere inconvenience is NOT enough.
**An area is NOT bounded if there is a REASONABLE means of escape and P KNOWS of it.
Damages: No need to prove actual damages, if D's conduct was motivated by malice, P may get punitive damages. - 18Intentional Torts: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSElements: An act by D that amounts to EXTREME and OUTRAGEOUS conduct, INTENT by D to CAUSE P to suffer SEVERE emotional distress or RECKLESSNESS as to the effect of D's conduct + CAUSE + DAMAGES
D does NOT need to prove ACTUAL INJURY (contrast to NIED) only SEVERE emotional distress. - 19IIED: OUTRAGEOUS CONDUCTThe conduct must be EXTREME - we are expected to live w/ a lot.
DEFINED: Conduct that transcends all bounds of decency tolerated by society.
Examples: (1) Extreme business conduct (2) misuse of authority (3) Offensive/insulting language generally NOT sufficient unless there is a SPECIAL relationship (think common carriers and innkeepers) b/w P or D or SENSITIVITY of P that D knows about. - 20IIED: MAKING NON-OUTRAGEOUS CONDUCT OUTRAGEOUSTo determine whether typically non-outrageous conduct is outrageous, consider whether the conduct is CONTINUOUS, the TYPE of plaintiff, and the TYPE of defendant.
- 21IIED: Type of Plaintiff1. Young children
2. Elderly persons
3. Pregnant women
4. Adults w/ supersensitivities D knows of.
Look for EXTREME facts. - 22IIED: Type of DefendantCommon carriers and innkeepers can be liable for less than outrageous conduct.
SCREW THEM!
But remember, the heightened standard only applies to common carriers and innkeepers if the plaintiff is a passenger or guest. - 23IIED: Causation Intent/Causation Requirements for Bystander CasesIntent/Causation for Bystander Cases: When D intentionally causes severe PHYSICAL harm to third person and the P suffers emotional distress, P is required to prove that she was (1) present when the injury occurred, (2) the P was a CLOSE RELATIVE of the injured person, and (3) D knew that the P was present and a close relative of injured person.
NOTE: P does NOT need to prove D knew of relationship if P can prove D had a DESIGN or PURPOSE to cause severe distress to P. Example of SPECIFIC INTENT - 24IIED: DAMAGESPhysical injury is NOT required but clear proof of SUBSTANTIAL EMOTIONAL distress is. Punitive damages allowed when D acted w/ improper motive.
- 25If another intentional tort, defamation, or action for invasion of privacy won't work, consider IIED.Bar Exam Favorite Tort!
- 26Intentional Torts to Property: TRESPASS TO LANDAn act of physical invasion by the defendant of the plaintiff's land + Intent + Cause
- 27Trespass to Land: ACT OF PHYSICAL INVASION BY DEFENDANTThe act of physical invasion requirement does not require the D personally go onto the land. After lawful right to be on land expires D may be liable for trespass.
However the pushed person is NOT a trespasser; the volitional movement (act) element of PF case is lacking.
SOME physical object MUST go onto the land.
Loud Music or Blasting?
No. Consider nuisance. - 28Trespass to Land: OF PLAINTIFF'S LANDIncludes not only the surface but also, for a reasonable distance, the space going up and down from the surface.
- 29Trespass to Land: Note on Intent, Mistake, Who May Bring an Action, and DamagesIntent: Intent to ENTER ON LAND.
Mistake as to lawfulness of entry is no defense as long as D intended to go on the land.
Who May Bring Action? Anyone in actual or constructive possession of the land; if no one in possession true owner is considered possessor.
Damages: Damages are presumed, no requirement of proof of actual damages. - 30Intentional Torts to Property: TRESPASS TO CHATTELS and CONVERSION Which tort?Some Damage? Trespass to chattels.
A Lot Of Damage? Conversion. - 31Trespass to Chattels: Elements and Who Can Bring the ActionD interferes w/ P's RIGHT OF POSSESSION, D INTENDS to perform the act, CAUSE, and DAMAGES.
ACT: (1) Intermeddling (causing damage)
(2) Dispossession
INTENT: Mistake is no defense, intent to interfere w/ chattel is sufficient.
DAMAGES ARE REQUIRED
Who Can Bring the Action: Anyone w/ possession or the immediate right to possession. SAME FOR CONVERSION - 32Conversion: Elements and Acts of ConversionElements: Act by D interfering w/ P's right of possession that is so serious D must pay full value for chattel + Intent + Cause
Refusing to Return or Altering the Chattel May Constitute Interference
Chattel is a tangible item of personal property and intangibles that have been reduced to physical form (promissory notes).
Types of Conversion: (1) Theft (2) Wrongful Transfer (3) Wrongful Detention
(4) Substantially Changing the Chattel
(5) Severely Damaging or Destroying the Chattel (6) Misusing the Chattel
INTENT to Interfere w/ P's Right of Possession
ACCIDENTAL conduct is insufficient unless D was using chattel w/o permission - consider action for negligence instead.
REMEDIES: DAMAGES (fair market value at time and place of conversion) or REPLEVIN (if D want chattel returned) - 33Intentional Torts to Property: TRESPASS TO CHATTELS and CONVERSION -Two Types of Damages-Physical damage AND/OR
Dispossession
Scratch on briefcase? TC
Destruction of briefcase? C
Take briefcase for several hours? TC
Take briefcase for 10 months? C - 34Intentional Torts to Property: TRESPASS TO CHATTELS and CONVERSION What does the plaintiff get?TC = Cost of repair
C = Full fair market value, forced sale - 35Intentional Torts: DEFENSES1. Consent
2. Defense Privileges
3. Necessity - 36Defenses to Intentional Torts: CONSENTThree Step Process: (1) Capacity
(2) Express/Implied (3) Limitations
First determine whether the P had capacity. If no capacity, consent is invalid.
Next determine if the consent was EXPRESS or IMPLIED. - 37Defenses to Intentional Torts: EXPRESS CONSENTTypically, words must be used for their to be express consent. The P has expressly shown a willingness to consent to D's conduct.
MISTAKE, FRAUD, COERCION
Consent by Mistake: If P expressly consents by mistake, consent is still a valid defense UNLESS D caused mistake or knew of mistake and took advantage of it.
Consent By Induced Fraud: If express consent is induced by fraud, it is NOT a valid defense.
Consent By Duress/Coercion: Consent obtained by duress may be invalid. But threat of future action or economic deprivation do not constitute legal duress to negate defense.
**If sufficient, these facts can UNDO express consent.** - 38Defenses to Intentional Torts: Implied Consent 2 Types(Lecture) Apparent implied consent arises in two ways:(1) custom (rules) and usage and/or P's conduct, and (2) consent implied by law.
Apparent Consent: Reasonable person would infer P's consented (sports). Inferred from USAGE and CUSTOM (ordinary life stuff)
Consent Implied By Law: Usually in an EMERGENCY situation where P is incapable of consenting - 39Defense to Intentional Torts: CONSENT Third Step and Effect of Criminal ActsThe THIRD and FINAL step is to determine if the D stayed w/in the boundaries of any consent given. If he did not, the consent may be lost - NOT if EMERGENCY.
What were the LIMITATIONS of the consent?
Criminal Acts: Generally person cannot consent to criminal acts but MODERN TREND differentiates b/w acts that are breaches of peace (fight - consent ineffective) and those that are not (prostitution - consent effective). Where criminal law is designed to PROTECT A CLASS against its own lack of judgment, consent is not a defense (statutory rape). - 40Intentional Tort Defense: THE DEFENSE PRIVILEGESSELF DEFENSE
DEFENSE OF OTHERS
DEFENSE OF PROPERTY
REENTRY ONTO LAND - 41Intentional Tort Defense: THE DEFENSE PRIVILEGES 3 Step Test1. Timing
2. Has defense test been satisfied?
3. Did D use proper amount of force? - 42Intentional Tort Defense: THE DEFENSE PRIVILEGES TimingThe tort committed against the D must be NOW occurring or JUST ABOUT to occur.
If the tort has ALREADY been committed there is no defense.
If you peacefully walk away, you can't then turn around and fight. - 43Intentional Tort Defense: THE DEFENSE PRIVILEGES 1. Timing (See Previous Card) and HOT PURSUITIf one is in hot pursuit of another who has wrongfully taken his chattel, the tort is still occurring so the timing test is satisfied.
- 44Intentional Tort Defense: THE DEFENSE PRIVILEGES 2. Is the DEFENSE TEST satisfied?Self Defense: One only needs to have a REASONABLE BELIEF he is about to be attacked such that force is necessary to protect himself from potential injury.
DUTY TO RETREAT? NO! There is NO duty to retreat before using self-defense. But RETALIATION is NOT ALLOWED. Defense is NOT available to the initial aggressor. Defense extends to third party injuries.
Defense of Others: Actor has reasonable belief the person aided would have the right of self defense.
Defense of Property: Actor may use reasonable force to prevent commission of tort against her property.
Request to desist usually required (TOC test); reasonable mistake of property owner allowed but EXCEPTION when entrant has privilege to enter that supersedes defense. Once the commission of the tort is over, the defense stops.
Right of Re-Entry, Re-Entry to Recapture Chattels, Necessity supersedes defense of property. - 45Intentional Tort Defense: THE DEFENSE PRIVILEGES 3. Proper amount of force?Rule ONE for SELF DEFENSE and DEFENSE OF OTHERS: One may use REASONABLE force necessary to prevent the harm.(including deadly force).
Rule TWO for DEFENSE of PROPERTY: One may use REASONABLE force NEVER calculated to bring about serious bodily injury.
Watch out for the "In Your Own Home" fact pattern. This is not DEFENSE of PROPERTY but rather DEFENSE of SELF or OTHERS. - 46Defenses: Defense of PropertyGenerally, request to desist must PRECEDE use of force (unless circumstances indicate it would be futile or dangerous).
Owner can raise mistake that he thought an intrusion occurred or whether request to desist is required. Mistake is NOT allowed where entrant has a privilege to enter that outweighs defense of property right (necessity, right of reentry, recapture chattels)
Limitation: Once the tort is over (the owner has been permanently dispossessed of property) you can't defend your property. - 47Intentional Tort Defense: NECESSITY1. The tort defended against must be a PROPERTY tort - most likely trespass to land.
2. Is it a public or private necessity? - 48Intentional Tort Defense: PUBLIC NECESSITYThis is for the BENEFIT OF MANY and is an ABSOLUTE PRIVILEGE. NO liability attaches.
- 49Intentional Tort Defense: PRIVATE NECESSITYThis is for the benefit of a limited number of people and is a limited privilege and the defendant will be liable for actual damage caused UNLESS the act is to BENEFIT the OWNER of the land.
- 50Intentional Tort Defense: Relationship b/w NECESSITY and DEFENSE OF PROPERTYNecessity PREVAILS over defense of property.
- 51Defense: Privilege of ArrestOne may have privilege to arrest a third person:
Person can invade another's land to effectuate the arrest. Although arrest may be privileged arrestor may be liable for subsequent conduct. One who is mistaken as to ability to arrest may be liable for false imprisonment.
SHOPKEEPER can detail person who is reasonably believed to have stolen. - 52Defense: Recapture of Chattels Entry Upon Land to Remove ChattelOwner can enter land of wrongdoer only to get the chattel at a reasonable time and in a reasonable manner (O should demand).
When chattel is on land of INNOCENT party the owner may enter and reclaim chattel at a reasonable time and in a peaceful manner when landowner has been given NOTICE.
If chattels on other's land for owner's fault then no privelige to enter land. - 53Defense: Recapture of ChattelsOne can only use peaceful means to recapture a chattel unless in hot pursuit (then allowed to use force). Owner must make a TIMELY DEMAND to return the chattel before using force (unless other circumstances), owner can recover ONLY FROM wrongdoer or third person. Can only use reasonable force (never deadly).
- 54HARM TO ECONOMIC AND DIGNITARY INTERESTS1. DEFAMATION
2. INVASION OF RIGHT TO PRIVACY
3. MISREPRESENTATION
4. INTERFERENCE WITH BUSINESS RELATIONS - 55DEFAMATION Prima Facie Case1. Defamatory statement about P
2. Publication
3. Damage to P's reputation
First Amendment?
4. Falsity
5. Fault - 56Defamation: DEFAMATORY STATEMENT ABOUT THE PLAINTIFF1. A statement is defamatory if it injures the P's reputation. Statement must be one of fact, mere name-calling is insufficient
2. Is statement about the plaintiff? The statement must be REASONABLY UNDERSTOOD to be about the plaintiff. - 57Defamation: PUBLICATION1. There must be a communication to a third person.
2. The communication may be either intentionally or negligently made.
NEGLIGENT COMMUNICATIONS TEST:
Was it reasonable to expect others would overhear it?
3. The third person must be capable of UNDERSTANDING the defamatory content.
Ex. Don't speak the language. - 58Defamation: DAMAGE TO PLAINTIFF'S REPUTATION LIBEL? SLANDER? SLANDER PER SE?WHAT TYPE OF DEFAMATION?
1. Libel: Defamation is written or broadcast - damages are presumed.
2. Slander: Defamation is spoken - plaintiff must prove special ($$) damages.
3. Slander per se: Slanders regarded as particularly devastating to reputation -
damages are presumed. - 59Defamation: Categories for SLANDER PER SE1. BUSINESS OR PROFESSION
2. CRIME INVOLVING MORAL TURPITUDE
3. LOATHSOME DISEASE
**4. IMPUTING UNCHASTITY TO A WOMAN - 60Defamation: DEFENSES1. Consent
2. Truth (unless 1st Amendment case)
3. Absolute and qualified privileges - 61Defamation Defense: CONSENTSame three step analysis.
- 62Defamation Defense: TRUTHApplies unless case involves the first amendment.
TRUTH is a complete defense. - 63Defamation Defense: ABSOLUTE PRIVILEGEAbsolute privileges cannot be lost.
1. Communications between spouses.
2. The three governmental branches: executive, legislative, and judicial.
Judicial is favorite on bar exam: anything said in course of litigation that is reasonably related to it is absolutely privileged.
Ex. perjuring witness. - 64Defamation Defense: QUALIFIED PRIVILEGEQualified privileges can be lost if they are abused.
1. When to give qualified privilege (TOC test).
2. Favorite bar exam fact pattern - REFERENCE from employer, they can't lie about the employee but, at the same time, their honest opinion is protected. - 65Defamation: Additional CONSTITUTIONAL Elements When is the first amendment at issue?When the matter is of PUBLIC CONCERN.
If first amendment applies add 2 elements and subtract 1 defense. - 66Defamation: FIRST AMENDMENT - FALSITYThe plaintiff must prove the statement was false. The burden of proof as to truth or falsity is shifted from the defendant to the plaintiff.
- 67Defamation: FIRST AMENDMENT - FAULT 3 Types of FaultThe plaintiff must prove the defendant was at fault. Three types of fault conduct:
1. Intentional
2. Reckless
3. Negligent
Which TYPE the P has to prove depends on the type of P. - 68Defamation: FIRST AMENDMENT - FAULT Type of Plaintiff: 1. Public Figure ACTUAL MALICE TESTIf the P is a PUBLIC FIGURE, he must prove either INTENTIONAL or RECKLESS conduct. Negligence is NOT enough.
ACTUAL MALICE TEST: The statement was made either knowing it was false, or with reckless disregard as to its truth or falsity.
If P is public figure, assume matter is of PUBLIC CONCERN. - 69Defamation: FIRST AMENDMENT - FAULT Type of Plaintiff: 2. Private PersonThe private person P only has to prove negligent tortious conduct, but the matter MUST be of public concern.
If D's conduct is greater than negligence, P should assert it. Then he has a chance to get presumed/punitive damages. - 70Defamation: FIRST AMENDMENT - FAULT Type of Plaintiff: 2. Private Person IL Tort DistinctionThe private person must prove the defendant made statement with negligence even if the matter is not one of public concern.
- 71INVASION OF RIGHT TO PRIVACY 4 SEPARATE AND DISTINCT BRANCHES First Branch: Misappropriation1. Appropriation by defendant of plaintiff's name or picture for defendant's commercial advantage.
Term "commercial advantage" is limited to PROMOTION of GOODS or SERVICES. - 72INVASION OF RIGHT TO PRIVACY 4 SEPARATE AND DISTINCT BRANCHES Prima facie requirement for branches 2-4.Prima facie requirement that defendant's conduct must be HIGHLY offensive to a reasonable person.
This is NOT a requirement for branch 1. - 73INVASION OF RIGHT TO PRIVACY 4 SEPARATE AND DISTINCT BRANCHES Branch 2: Intrusion by D into P's Privacy or SeclusionTEST: Common sense fact analysis - would a reasonable person find this kind of intrusion to be highly offensive?
Private Corner of the World Analysis - 74INVASION OF RIGHT TO PRIVACY 4 SEPARATE AND DISTINCT BRANCHES Preliminary Note for 3 and 4 The "Publication" BranchesPublication - wide dissemination of statements.
Compare defamation: Communication to even one person is sufficient. - 75INVASION OF RIGHT TO PRIVACY 4 SEPARATE AND DISTINCT BRANCHES Branch 3: Publication of facts placing P in a false light.Tested often.
Actual malice test applies where a matter is in the public interest and a public figure is involved. If a case like this is on the bar, the P should lose. - 76INVASION OF RIGHT TO PRIVACY 4 SEPARATE AND DISTINCT BRANCHES Branch 4: Publication of Private Facts About PlaintiffNo defamation or false light because statement is TRUE.
Test: Common sense fact analysis - would a reasonable person find the publication of these facts to be highly offensive? Are they sufficiently private?
Paparazzi? Generally not a private fact.
Can publish photo of cheating romantics. - 77INVASION OF RIGHT TO PRIVACY DefensesConsent
The defamation privileges. - 78MISREPRESENTATION 2 KINDS1. INTENTIONAL
2. NEGLIGENT - 79INTENTIONAL MISREPRESENTATION PRIMA FACIE CASE1. Misrepresentation
2. Scienter
3. Intent to Induce Reliance
4. Justifiable Reliance
5. Causation
6. Damages - 80INTENTIONAL MISREPRESENTATION 1. Misrepresentation1. There must be a misstatement of fact, not an opinion unless rendered by someone w/ superior skill in the area.
B/c of justifiable reliance requirement.
2. Silence is not enough; one must affirmatively misspeak. - 81INTENTIONAL MISREPRESENTATION 2. ScienterScienter = actual malice.
The statement was made either knowing it was false, or with reckless disregard as to its truth or falsity. - 82INTENTIONAL MISREPRESENTATION 3. Intent to Induce Reliance 4. Justifiable reliance. 5. Causation 6. Damages3. Defendant must have the intention to induce reliance. Exception: Continuous deception (mislabeled product)
4. Justifiable Reliance: There is NO duty to investigate to show reliance is justifiable. Generally, reliance on opinion is unjustified unless (1) the D had superior knowledge of the subject matter, then the reliance of a person w/o that knowledge will be justified; or (2) statements of law (superior knowledge standard); or (3) statements of future events - statement of PRESENT INTENT (viewed as statement of fact)
5. Cause: Actual Reliance
6. Damages: P may recover ONLY if he has suffered actual pecuniary loss. - 83INTENTIONAL MISREPRESENTATION DefensesNONE
- 84Negligent MisrepresentationPF Case: (1) misrepresentation made by D in a business or professional capacity; (2) breach of duty toward particular P; (3) causation; (4) justifiable reliance by P upon misrepresentation; and (5) damages.
Generally, liability is confined to commercial transactions.
D's Duty of Care: Extends to those persons to whom the representation was made or to specific persons who defendant knew would rely on it. - 85INTERFERENCE WITH BUSINESS RELATIONS Prima Facie Case1. Valid (existing OR prospective) relationship between P and third person.
**Easier for P to win in existing fact pattern.
2. D's knowledge of relationship.
3. Intentional interference.
4. Damages - P must prove actual damage, but may also recover distress damages and punitive damages. - 86INTERFERENCE WITH BUSINESS RELATIONS Defense of Privilege ***The existence of a privilege is a question of fact. Most important facts:
1. Defendant's PERSUASIVE conduct (physical aggression v. mere oral suggestion) - the harsher the conduct the harder it is to get a privilege.
2. Relationship b/w the parties facts.
Plaintiff and Defendant: Competitors? If yes, there is a competitor's privilege to cover interferences w/ prospective relationships.
Defendant and Third Person: Close relatives? Advisor? Lawyer? Privilege exists. - 87NEGLIGENCE Prima Facie Case1. Duty to Conform to Standard of Conduct
2. Breach
3. Cause
4. Damages - 88Negligence: DUTY1. Foreseeable Plaintiff
2. Standard of Care - 89NEGLIGENCE: Duty Foreseeable Plaintiffs Foreseeable Plaintiffs as a Matter of LawDuties of care only owed to FORESEEABLE plaintiffs. Foreseeable victims of D's negligence.
On BAR exam, P is almost always foreseeable.
Foreseeable as a Matter of Law
1. Rescuers (as long as rescue is not wanton)
Also consider Firefighter's Rule: Barred from recovery on assumption of risk grounds.
2. Viable fetuses - 90NEGLIGENCE: Duty Unforeseeable Plaintiff Fact PatternThe unforeseeable plaintiff is the person who is not within the foreseeable zone of danger. The zone of danger is measured from the time of the negligent conduct.
- 91NEGLIGENCE: Duty Standards of Care ***If you have a foreseeable P, then move on to standard of care.
1. What standard applies?
2. What is the standard?
STANDARDS
1. Reasonable Person
2. The Child
3. The Professional
4. The Owner/Occupier
5. The Activity - 92NEGLIGENCE: Duty Reasonable Person StandardThe actor has a duty to act as an ORDINARY, PRUDENT, REASONABLE person.
A reasonable person under the circumstances.
An objective test.
Invent an average person, assign person traits and characteristics, and then MEASURE the reasonableness of D's conduct NOT according to his/her own traits but rather those of the hypothetical reasonable person. - 93NEGLIGENCE: Duty Reasonable Person Standard Physical Characteristics? Disabled Defendant Trick ***Defendant's physical characteristics WILL be taken into account but his mental handicaps will NOT.
D has SAME knowledge as average member of the community but if D has SUPERIOR knowledge of a relevant fact IS considered in analysis.
Disabled Defendant Trick: If defendant is AWARE of his disability he is supposed to act as a reasonable person with it would act.
Ex. Blind person would not fly a plane.
No room for LOVE or HATE. - 94NEGLIGENCE: Duty The Children StandardChild of LIKE age, intelligence, experience.
This is a SUBJECTIVE standard. The opposite of adult standard - the child's personal characteristics WILL be taken into account.
Likely court will NOT find child below 4 had capacity to be negligent. - 95NEGLIGENCE: Duty The Children Standard EXCEPTIONWhere the child is engaged in an ADULT ACTIVITY, the reasonable person standard applies.
- 96NEGLIGENCE: Duty The Professional Standard General SpecialistGENERAL: A reasonable professional (knowledge and skill), in good standing, in the same or similar communities.
SPECIALIST: The professional's specialist status will raise standard of care to that of a reasonable specialist (Medical Specialists: NATIONAL Standard) - not same/similar community standard. - 97Negligence: DUTY The Common Carrier and Innkeepers StandardLiability for even slight (NOT ordinary) negligence. You do NOT have to show lack of reasonable care.
However, ONLY applies if you have a passenger or guest. - 98NEGLIGENCE: Duty The Owner-Occupier Standards ALWAYS ON BAR EXAM1. Make sure D is owner/occupier or in PRIVITY with one.
2. Determine if the injury occurred on or off the land.
3. Assuming injury is on the land, determine whether the plaintiff is an undiscovered trespasser. - 99NEGLIGENCE: Duty The Owner-Occupier Standards 1. D's Status as Owner/OccupierThe defendant must be an OWNER/OCCUPIER or in privity with one.
Privity: Immediate family member, employees. - 100NEGLIGENCE: Duty The Owner-Occupier Standards 2. Injury on or off land?For bar exam, injury will almost ALWAYS occur on the land.
OFF-LAND INJURY TRICK: Anytime an alternative assigns a status to the injured plaintiff, e.g. trespasser, DISCARD IT!
B/c in order for person to acquire a status they must be ON the land.
EXCEPTIONS: A landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land and (2) a landowner has a duty to take precautions to protect passerbys from dangerous conditions (barricading a hole) - 101NEGLIGENCE: Duty The Owner-Occupier Standards 3. Is plaintiff an undiscovered trespasser? Duty to Discovered TrespassersIf the P is an UNDISCOVERED trespasser there is no duty owed to him (so no standard of care).
These Ps ALWAYS lose.
Duty to Discovered Trespassers (and Anticipated Trespassers): Exercise ordinary care to warn the trespasser of, or to make safe artificial conditions KNOWN to the landowner that involve a risk of death or serious bodily harm and the trespasser is unlikely to discovery. No duty owed for natural conditions and less dangerous artificial conditions. And ACTIVE operations.
If discovered trespasser/licensee/invitee), determine what CAUSED the injury.
Was it an activity or dangerous condition? - 102NEGLIGENCE: Duty The Owner-Occupier Standards ACTIVITY/DANGEROUS CONDITIONACTIVITY is anything you're doing on the land, must be RECENT.
DANGEROUS CONDITION: hole in ground, defect in building wall. - 103NEGLIGENCE: Duty The Owner-Occupier Standards THE ACTIVITY STANDARD ???This is an ordinary negligence case and plaintiff's status is irrelevant. The standard is the reasonable person standard. Does NOT apply to the undiscovered trespasser.
- 104NEGLIGENCE: Duty The Owner-Occupier Standards The Dangerous Condition StandardsPlaintiff's status is relevant because the O/O is responsible for (1) different types of dangerous conditions depending on (2) the type of plaintiff.
Type of Plaintiffs: (1) Discovered Trespasser, (2) Licensee, and (3) Invitee - 105NEGLIGENCE: Duty The Owner-Occupier Standards The Dangerous Condition Standards DISCOVERED/ANTICIPATED TRESPASSERDISCOVERED TRESPASSER
O/O is responsible (must warn or make safe) (1) ARTIFICIAL conditions (2) involving a risk of serious injury
(3) the O/O KNOWS of.
O/O NOT responsible for NATURAL conditions.
The ANTICIPATED trespasser is treated as a DISCOVERED TRESPASSER. - 106NEGLIGENCE: Duty The Owner-Occupier Standards The Dangerous Condition Standards LICENSEEThe LICENSEE is a person on the land w/ permission for his own purpose (door-to-door salesman, someone invited to dinner: "social guests")
The O/O has a duty to warn of or make safe a dangerous condition known to the O/O that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. However, the O/O has no duty to inspect for defects or repair known defects. Active Operations reasonable standard of care applies.
O/O is responsible for ALL (natural and artificial) dangerous conditions and there is NO substantial injury requirement. - 107NEGLIGENCE: Duty The Owner-Occupier Standards The Dangerous Condition Standards INVITEEThe invitee is on the land for an O/O purpose (enters premises in response to express/implied invitation from landowner).
2 Types: (1) places held open to the public; (2) and those who enter for a business purpose.
**A person loses her status an an invitee if she exceeds scope of invitation (goes on to portion of premiss where her invitation does not reasonably extend).**
The O/O owes all of the licensee duties (to warn of or make safe non-obvious, ALL dangerous conditions known to the O/O and Active Operations standard) + a duty to make REASONABLE INSPECTIONS to discover dangerous conditions and then make them safe (warnings - but not required if danger is obvious).
The O/O is responsible for dangerous conditions the O/O knows of or SHOULD know of.
The "know or should know" requirement means the O/O must make a reasonable inspection of the property for the benefit of the invitees.
Choose invitee over licensee. - 108NEGLIGENCE: Duty The Owner-Occupier Standards The Dangerous Condition Standards ILLINOIS DISTINCTIONIllinois does not distinguish between an invitee and licensee, both are owed a duty of ORDINARY care.
- 109NEGLIGENCE: Duty The Owner-Occupier Standards BAR EXAM FAVORITE ISSUES Nuisance1. DISCHARGE OF DUTIES: Duties may be discharged by either warning of or making safe the dangerous condition. Look for whether the the condition is safe or whether there was an adequate warning.
2. Very obvious dangerous conditions =
NO LIABLITY
3. INFANT TRESPASSER/ATTRACTIVE NUISANCE DOCTRINE:
O/O owes a duty to exercise ordinary care to avoid a foreseeable risk of harm to children caused by artificial conditions on his property.
Prima Facie Case: (1) dangerous condition present on land which owner knows of or should know of; (2) owner knows or should know children frequent the vicinity of the dangerous condition; (3) the condition is dangerous (likely to cause injury) b/c of child's inability to appreciate risk (child did not understand risk); and (4) expense to remedy is slight compared w/ risk.
Child does not need to show the dangerous conditions attracted him to it - 110NEGLIGENCE: Duty STATUTORY STANDARDSIf the statutory standard applies, apply it over the reasonable person standard.
- 111NEGLIGENCE: Duty STATUTORY STANDARDS The TestThe plaintiff must fall w/in the protected class and the statute must be designed to prevent this kind of harm (legislative intent?).
BAR TIP: On most exams the statute in the fact pattern was NOT designed to prevent the harm that occurred and thus was inapplicable. - 112NEGLIGENCE: Duty STATUTORY STANDARDS Effect of Statute Being INAPPLICABLEIf the statute does NOT apply, the lawsuit is NOT over, you must apply the REASONABLE PERSON standard of care
- 113NEGLIGENCE: Duty STATUTORY STANDARDS Effect of Non-Compliance With Applicable Statute.Non-compliance with an applicable statute results in negligence per se.
This means that there is a conclusive presumption of negligent conduct on the defendant's part.
It does NOT means the defendant is automatically liable for negligence. - 114NEGLIGENCE: Duty STATUTORY STANDARDS Effect of Non-Compliance With Applicable Statute IL DistinctionIn Illinois, the violation of a statute is not a conclusive presumption but rather prima facie evidence of breach.
- 115NEGLIGENCE: Duty STATUTORY STANDARDS Excuse for Non-ComplianceCompliance would be MORE dangerous.
Compliance would be impossible (beyond D's control). - 116NEGLIGENCE: Duty STATUTORY STANDARDS Effect of Compliance With Applicable Statute.Compliance with the statutory standard can be introduced by the defendant, but this will not necessarily establish due care if the CIRCUMSTANCES require more.
This arises on Bar Exam as a D's argument. - 117NEGLIGENCE: Duty Negligent Infliction of Emotional Distress1. Plaintiff must suffer physical injury (shock is enough).
This is NOT required in IIED.
2. Plaintiff must be w/in the target zone of defendant's negligent conduct. - 118NEGLIGENCE: Duty Negligent Infliction of Emotional Distress Third Party RecoveryThe plaintiff can recover if he is a CLOSE RELATIVE and WITNESSED the injury.
- 119NEGLIGENCE: Duty Negligent Infliction of Emotional Distress Third Party Recovery: ILLINOIS DISTINCTIONThe plaintiff must be in the ZONE OF DANGER there is NO relative requirement.
Broadens recovery. - 120NEGLIGENCE: Duty AFFIRMATIVE DUTY TO ACTThere is NO affirmative duty to act.
There is not liability for being a BAD SAMARITAN.
Exceptions:
1. Special relationship b/w parties: family member, employer/employee, common carriers/passengers, innkeepers/guests.
2. Duty to control third persons: Right and ability to control and the person knows or should know it is required.
3. Assumption of duty to act by acting: if you start giving aid you have a duty to exercise ordinary care and continue the assistance.
4. P's peril due to D's negligence. - 121NEGLIGENCE: BreachBreach (Negligent Conduct): where the D's conduct falls below standard of care owed to P, she has breached her duty.
To determine whether there is a breach, analyze whether the D's actions comported with the applicable standard of care.
Custom/Usage, Violation of Statute, RIL - 122NEGLIGENCE: Breach Res Ipsa Loquitor - When At Issue? The Thing Speaks For ItselfRIL is at issue if the fact pattern indicates that P does not have enough solid evidence to establish negligent conduct on D's part.
- 123NEGLIGENCE: Breach Res Ipsa Loquitor - Probability Inference Test1. Inference of Negligence: This usually would NOT happen unless someone was negligent. (probably someone was negligent)
2. Negligence Attributable to Defendant: Evidence connects D with negligence. Most often proven by showing the instrumentality causing the injury was in the defendant's exclusive control. IF MORE THAN ONE DEFENDANT, NO RES IPSA.
3. Plaintiff is NOT contributorily negligent. - 124NEGLIGENCE: Breach Res Ipsa Loquitor - The Rules1. If RIL applies, the result is NOT that the plaintiff wins.
2. The result is that the plaintiff's case will SURVIVE a motion for directed verdict and will go to the jury with an inference of negligence. D's motion for directed verdict DENIED.
3. The jury will then decide whether to accept or reject the inference.
A SHOWING OF RIL ALLOWS THE CASE TO GET TO THE JURY - 125Negligence: CAUSATION *** Lots of questions. ***1. Actual
2. Proximate - 126Negligence ACTUAL CAUSATION Question to ask. 3 Basic TestsDid the D's conduct actually cause the injury?
3 Tests
1. But For
2. Substantial Factor
3. Alternative Causes - 127Negligence ACTUAL CAUSATION The But For Test Concurrent CausesBut for defendant's negligent conduct, would this injury have occurred?
Plaintiff Negative Response: If result is negative for plaintiff, the almost always decide the case in the defendant's favor. There is NO causation.
The but for test also applies where several acts combine to cause the injury but NONE of the acts standing alone would have been sufficient. "But for ANY of the acts, the injury would not have occurred." Contrast w/ substantial injury test. - 128Negligence ACTUAL CAUSATION The But For Test Could Give Wrong AnswerSometimes the but for test gives the wrong answer because there is actual causation or there is a strong probability of it.
- 129Negligence ACTUAL CAUSATION: Substantial Factor TestWhere several causes bring about an injury and ANY ONE alone would be sufficient, Defendant's conduct was a substantial factor in causing the injury.
Applies when either defendant could have caused the result by himself. - 130Negligence ACTUAL CAUSATION: Alternative Causes TestTwo or more negligent defendants, but uncertainty as to which caused injury.
The PROBLEM: You can't determine who did or did not do it.
The SOLUTION: P proves harm has been caused by one D, then burden shifts to Ds to show that his negligence is not the actual cause. - 131Negligence PROXIMATE CAUSATION: A Limitation of Liability General Rule of LiabilityA foreseeability test: it is a way for the jury to let a defendant who actually caused an injury off based on a lack of foreseeability.
General Rule of Liability: The D is liable for all harmful acts that are the normal incidents of and within the increased risk caused by his acts. - 132Negligence PROXIMATE CAUSATION: Direct Cause CaseUninterrupted chain of events between negligent act and injury.
No external intervening forces of any kind.
Foreseeable result, hold defendant liable. - 133Negligence PROXIMATE CAUSATION: Indirect Cause CaseBetween negligent act and injury there is an intervening force which combines with prior act to cause injury.
Foreseeable Results Caused by Foreseeable Intervening Forces--Defendant Liable:
Dependent Intervening Force (almost ALWAYS foreseeable): (1) subsequent medical malpractice; (2) negligence of rescuers; (3) efforts to protect persons or property (4) reaction forces (firing gun at feet - liability attaches for harm inflicted by reacting person on another); (5) subsequent disease; (6) subsequent accident
D Liable for Foreseeable Independent Intervening Force (foreseeable where D's negligence increased the risk that these forces would cause harm to P): (1) Negligent acts of 3d persons; (2) criminal acts and intentional torts of third persons; (3) act of god. These forces DO NOT cut off D's liability - but still apply foreseeability test. - 134Negligence PROXIMATE CAUSATION: Indirect Cause CaseForeseeable Results Caused by Unforeseeable Intervening Forces - D usually liable. EXCEPTION: intervening force is an unforeseeable crime or intentional tort of third party (these are considered superseding forces and cut off D's liability).
Unforeseeable Results Caused By Foreseeable Intervening Forces - D NOT Liable
Unforeseeable Results Caused by Unforeseeable Intervening Forces - D NOT Liable: Intervening forces that produce unforeseeable results will be deemed to be unforeseeable and superseding. A superseding force is one that serves to break the causal connection between D's initial negligent act and the ultimate injury (becomes direct cause).
Unforeseeable extent or severity of harm: D liable. - 135Negligence PROXIMATE CAUSATION: The Two Rules1. If the result was unforeseeable, let the defendant go!
2. If the result was foreseeable hold the defendant liable. - 136Negligence PROXIMATE CAUSATION: The Two Rules Exception to Rule #2In an indirect cause case if the intervening force was an unforeseeable intentional tort or crime, defendant will not be held liable even though the result was foreseeable.
- 137Negligence: CAUSATION Bar Exam Tips1. Direct Cause Cases: Over 90% of the time this will be regarded as foreseeable.
2. The egg-shell plaintiff fact pattern: you take your plaintiff as you find him.
-This is not an unforeseeable result case.
-It is only necessary that one be able to foresee an injury not the extent of the injury - 138Negligence: DAMAGESDamages part of prima facie case of negligence: P must prove actual harm or injury (damages are NOT presumed, so nominal damages are NOT available in an action for negligence).
Recoverable Damages: (1) personal injury (economic damages and non-economic damages, can include emotional distress damages incident to injury) including impaired future earning capacity; (2) property damage (cost of repair or if almost destroyed fair market value); (3) punitive damages generally not recoverable - exception: if D's conduct was wanton and willful, reckless, or malicious.
Property Damage Rule: You take your plaintiff's property as you find it.
There is a duty to mitigate.
Collateral Source Rule: Damages not reduced because of payments from other sources (insurance, sick pay).
Can't recover interest from date of damage in PI case, or attorney's fees. - 139Defenses to Negligence1. Contributory negligence (5jx)
2. Comparative negligence (45jx)
3. Assumption of risk - 140Contributory Negligence: Standard of Care Rescuers and Emergency Conditions P's Statutory Violation (With Exception) When Not a DefenseStandard of Care for Contributory Negligence: Ordinary negligence.
Rescuers: P may take EXTRAordinary risks when attempting a rescue w/o being considered contributorily negligent. Take into consideration emergency condition.
Remaining in known danger is contributorily negligent.
P's violation of STATUTE can establish contributory negligence (same test as regular negligence but switched). Exception: Where D's negligence arose from violation of a statute that was designed to protect the particular class of Ps from their own bad judgment/lack of capacity, then P's contrib. neg. is NOT a defense.
Contributory negligence is NOT a defense to intentional torts (willful/wonton conduct). - 141Contributory Negligence: Implied Assumption of Risk1. Plaintiff knew of the risk.
2. The plaintiff voluntarily proceeded in the face of it.
BAR EXAM: To recognize fact pattern where BOTH contributory negligence AND implied assumption of the risk are available, it is where the plaintiff (1) unreasonably, (2) voluntarily takes on a (3) known risk.
NOT a defense to an intentional tort. - 142Contributory Negligence: UNKNOWINGThe plaintiff does not know that he is being negligent (blindly stepping off a curb and is hit by a negligently driven car).
- 143Exceptions to Implied Assumption of Risk Risks that MAY NOT Be Assumed Express Assumption of Risk1. No other viable alternative
2. Plaintiff or Another's Emergency
1. Common carriers/public utilities cannot limit their liability for personal injury by disclaimer; (2) when statute protects a class members of that class WILL NOT be deemed to have assumed risk; (3) no assumption of risk in cases involving fraud force, or emergency (unless unreasonable)
Express Assumption of Risk: Express agreement. - 144Contributory Negligence vs. Comparative Negligence EFFECT OF CONTRIBUTORY NEGLIGENCE1. CONTRIBUTORY NEGLIGENCE STATE: Any contributory negligence completely bars recovery.
2. COMPARATIVE NEGLIGENCE STATE: Contributory negligence reduces the recovery in a comparative negligence state. - 145Contributory Negligence v. Comparative Negligence Partial v. Pure Comparative NegligencePartial Comparative Negligence: NO recovery if one was more negligent that the other party. Recover nothing if more than 50% or at least 50% depending on jx.
Pure Comparative Negligence: Allows recovery no matter how great P's negligence is (i.e. P is only 10% at fault he can still recover). Applies on MBE unless stated otherwise. Even the more negligent party can recover.
Unless told otherwise assume a pure comparative negligence state. - 146Contributory Negligence vs. Comparative Negligence IMPLIED ASSUMPTION OF RISKApplies in contributory negligence state, does not apply in comparative negligence state.
- 147Contributory Negligence vs. Comparative Negligence Last Clear Chance Doctrine AKA "Humanitarian DoctrineThe Doctrine: Contributorily negligent plaintiff successfully contends that after his/her negligence, defendant still had the last clear chance to avoid the accident and, thus, contributory negligence should be disregarded as a defense. 2 Kind: (1) Helpless Peril: Actor puts himself in situation where he can't help himself (knows or should know); or (2) Inattentive Peril (D is in place of peril and he could help himself - most court require actual knowledge of peril)
Contributory Negligence State: Yes
Comparative Negligence State: No.
The "Last Clear Chance" doctrine is NOT a defense for D but is a defense for P. - 148Contributory Negligence vs. Comparative Negligence Defendant's Conduct Was RecklessContributory Negligence State: Contributory negligence will not be a good defense.
Comparative Negligence State: Contributory negligence will lower the amount of the award.
Wanton and Reckless in Comparative Negligent Sate: P's conduct will be taken into consideration. - 149Strict Liability Prima Facie CaseSame as for negligence but the standard of care is replaced by an ABSOLUTE DUTY TO MAKE SAFE.
1. Nature of D's activity imposes an absolute duty to make safe; (2) dangerous aspect of activity is actual and proximate cause of P's injury; (3) P suffered damage (personal or property). - 150Strict Liability - Defenses Contributory Negligence State Knowing v. UnknowingKnowing Contributory Negligence: A COMPLETE defense if P knew of danger and his unreasonable conduct was cause of harm from wild animal or abnormally dangerous activity..
Result = Plaintiff recovers nothing.
Unknowing Contributory Negligence: This is NO defense.
Result = Plaintiff recovers everything.
BAR: Contrast w/ negligence where this is a GOOD defense. - 151Strict Liability - Defenses Comparative Negligence StateKnowing and unknowing contributory negligence: both can be asserted against the recovery.
Result: P recovers what they would recover under that state's comparative negligence rules - 152Strict Liability Personal Injury From AnimalsOwner is strictly liable for the damage done by the trespass of his animals as long as it was reasonably foreseeable.
Owner is strictly liable for injuries caused by wild animals even those kept as pets.
Owner of domestic animal (includes farm animals) is not strictly liable for injuries it causes. Liability will attach if (1) owner had knowledge of animal's dangerous propensities (propensities more dangerous than normal for that species) - rule applies even if animal never injured someone.
Dog Bite Statute: Jx based - imposes strict liability in personal injury actions even w/o prior knowledge of dangerous characteristics.
Injury caused by the normally dangerous characteristics of domestic animals (bulls/honeybees) does not create strict liability. - 153Strict Liability Abnormally Dangerous ActivitiesThe super careful defendant - totally IRRELEVANT!
Ex. Blasting
Red Herring: Negligent Conduct - Any alternative which refers to D's conduct is part of FAULT analysis. - 154Products Liability Threshold Inquiry(1) Intent; (2) Negligence; (3) Strict Liability; (4) IWM and IWFPP; (5) Representation theories (express warranties and misrepresentation).
Who can you successfully hold liable for products liability?
Any commercial supplier as long as you can establish two requirements. - 155Products Liability First RequirementThe defect causing the injury must have existed at the time the product left that defendant's control.
RULE: There is an inference the defect existed when it left any given defendant's control if since that time the product has moved through normal channels of distribution.
Manufacturing Defects (one item off line was defective)
Design Defects (all same but made w/ dangerous propensities) - 156Products Liability Second RequirementPlaintiff needs a workable theory (1) negligence or (2) strict liability.
To determine which theory applies look to the call of the question. - 157Products Liability Negligence TheoryPrima Facie Case: Same as Ordinary Negligence Case
The focus is on the D's CONDUCT.
Negligent Conduct Possibilities
1. Negligent design
2. Negligent manufacture
3. Negligent warnings
4. Negligent inspections
RIL is available. - 158Products Liability Negligence Theory Duty: Who can be a plaintiff? BreachDuty is owed to anyone who is within the foreseeable zone of risk including bystanders. Usually duty of care arises when D engages in the affirmative conduct associated w/ being a commercial supplier of products.
Labeling another's product (or assembling product from components manufactured by others) is liable for negligence of actual manufacturer.
Breach: Negligent conduct by D; D supplied a defective product.
Cause: Same as ordinary negligence test but an intermediary's negligent failure to discover a defect (unless more than ordinary foreseeable negligence) is not a superseding cause and original D will be liable along w/ any intermediary. - 159Products Liability Negligence Theory - Who can be a defendant?Manufacturers? Almost always
Retailers/Wholesalers? Almost never
Beware of fact pattern w/ obviously negligent retailer.
One who labels a product as his own or who assembles product from parts made by other CAN be liable for negligence even though they were NOT personally negligent. - 160Products Liability Strict Liability TheoryPrima Facie Case: D is a commercial supplier; D sold a defective product; defective product was actual and proximate cause of p's injury; P suffered damages to person or property.
Focus is NOT on the D's conduct ONLY that the product was defective.
P need not prove negligence.
Strict Liability Test: An unreasonably dangerous condition.
Who can be a P? Anyone who is w/in the foreseeable zone of risk including bystanders.
Who can be a D? Everyone (including manufacturers, retailers, assemblers, or wholesalers).
Product must reach consumer w/o substantial change.
Causation: P must trace harm suffered to defect in product that existed when the product left the D's control (P can rely on inference failure would normally only occur because of product defect)
Damages: Same as negligence (personal injury and property) and most states DENY recovery under strict liability when sole claim is economic loss. - 161Products Liability Bar Exam Favorites1. Warnings: Adequate warning will insulate from liability.
2. The Feasible Alternative Approach: if one could have cured a defect for a minor amount of money relative to the risk involved he/she should have done it AND a warning will not save them.
***3. Product Use Incidental to Performance of Services: Strict liability is unavailable.
Is it incidental to the service? - 162NuisanceCan be based on intentional tort, negligence, or strict liability theories.
Not a separate tort in itself.
Nuisance is a type of harm. - 163Private NuisanceSubstantial, unreasonable interferences w/ one's use and enjoyment of land.
Substantial Interference: Offensive, inconvenient, or annoying to an average person in the community.
Unreasonable Inference: Injury must outweightutility. - 164Public NuisanceAct which unreasonably interferes with health, safety, or property rights of the community.
- 165Nuisance Proper PlaintiffsPrivate Nuisance Suits: Plaintiff must either have possession or the right to immediate possession.
Public Nuisance Suits: Private persons may recover only if he has suffered unique damages not suffered by the public. - 166Nuisance The StandardThe conduct must be objectionable to an average person.
An objective standard. - 167Nuisance Exam FavoriesNuisance involves the balancing of competing interest.
Plaintiff CAN come to the nuisance and maintain the lawsuit.
Trespass to Land Distinguished: In a trespass, there is an interference with the landowner's exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment. - 168General Considerations for ALL Tort Cases1. Vicarious Liability
2. Multiple defendant issues
3. Survival and wrongful death
4. Tort immunities - 169Vicarious Liability Respondeat Superior Independent Contractor SituationsLiability for another's tort.
Respondeat Superior: Employers are liable for torts of employees committed w/in the scope of employment. Generally no liability for independent contractors.
Intentional torts are NOT w/in the scope of employment, however, the following exceptions apply: (1) force is authorized, (2) friction is generated by this type of employment, (3) employee is trying to further employer's business
Ind. Contractor: Generally, no liability - 2 Exceptions: (1) Employer liable when contractor is engaged in inherently dangerous activities; (2) because of public policy considerations, it is nondelegable
Winning alternative has focused on exceptions. - 170Vicarious Liability Automobile Owners/DriversAutomobile owners are NOT vicariously liable for the torts of other drivers.
Exceptions (Owner WILL be liable)
1. Family Car Doctrine: Household member using w/ permission
2. Permissive Use Doctrine: Anyone using w/ permission
Automobile owners are not vicariously liable for driver's torts, but you are liable for your own negligence (giving your drunk friend your keys). - 171Vicarious Liability Parent/ChildrenParents are NOT vicariously liable for the torts of their children.
Exception: Intentional torts up to limited dollar amounts by statute.
Parents liable for their own negligence. - 172Vicarious Liability Parties: Multiple Defendant Issues ReleasesA release does NOT release other tortfeasors unless it expressly does so.
- 173Vicarious Liability Parties: Multiple Defendant Issues Joint and Several LiabilityWhere multiple acts cause indivisible injury, each defendant will be potentially liable for the entire judgment amount.
On exam, assume joint tortfeasors are jointly and severably liable. - 174Vicarious Liability Parties: Multiple Defendant Issues Contribution and IndemnificationUsed where a D, because of joint and several liability, has paid more than his fair share of the judgment and wants the other defendants to contribute or indemnify.
- 175Vicarious Liability Parties: Multiple Defendant Issues Contribution and Indemnification: ContributionContribution: Where defendants are more or less equally responsible they will ultimately share the judgment amount equally.
NOTE: (1) Defendant from whom contribution is sought must also be liable (ex. not have independent defense such as intra-family tort immunity) and (2) not applicable to intentional torts. - 176Vicarious Liability Parties: Multiple Defendant Issues Contribution and Indemnification: IndemnificationCan get everything back from other defendants. Shifting entire loss among tortfeasors
Indemnification Grounds
1. the other defendant is a LOT more responsible
2. Vicarious liability
3. Indemnification in product cases. - 177Vicarious Liability Parties: Multiple Defendant Issues Contribution and Indemnification: Comparative ContributionDefendants will ultimately split up judgment according to relative fault.
Each pay 100% then they can indemnify.
Comparative contribution effectively eliminates traditional contribution and the first ground for indemnification. - 178Survival and Wrongful DeathThese are derivative recoveries. this means you will stand in no better position than decedent would have if she lived.
- 179Tort ImmunitiesIntra-Family = Abolished
Charitable = Abolished
Governmental = Depends - 180Governmental Tort ImmunityImmunity is available for governmental functions; it's not available for proprietary function.
to determine if function is proprietary, ask: would a private person normally perform this functions?
If yes, then it is a proprietary function - 181Defamation: SINGLE PUBLICATION RULEGenerally, each repetition of the defamatory statement is a separate publication for which the plaintiff may recover damages.
However, under the SINGLE PUBLICATION RULE, all copies of a newspaper, magazine, or book are treated as only ONE publication. - 182Defamation: Types of Damages to Plaintiff's ReputationGeneral (Presumed) Damages: These damages are presumed by law and P does not have to prove them. They are intended to compensate P for general injury to her reputation.
Special Damages: Plaintiff must specifically prove that she suffered pecuniary lost as a result of statement's effect on reputation and are NOT proved merely by evidence of actual injury but rather loss of job, gift, inheritance, etc. - 183Defamation: Qualified PrivilegeSituations: (1) reports of public proceedings (excuses accurate reports of statements that were false when made but does NOT excuse inaccuracies in reporting of statements); (2) publication to one acting in public interest (statements made to those taking official action and critique for purposes of public interest is permitted) OR making a fair comment or criticism of matter of general public interest; (3) interest of publisher (statement is made to defend her actions, property, reputation); (4) interest of recipient (job reviews by former employers to prospective employers), involves recipient's interest in information and whether it is reasonable for D to make publication; (5) common interest b/w publisher and recipient.
- 184Defamation: Loss of Qualified Privilege Through Abuse Burden of Proof1. Statement not within scope of privilege (does NOT cover publication of irrelevant defamation matter unconnected w/ public/private interest entitled to protection or publication to any person whose hearing of statement could not reasonably be believed to be necessary for furtherance of that interest.
2. When actual malice is proved.
B/P: D bears burden of proving privilege exists. - 185Group DefamationAll members of small group: each member may establish defamatory statement was "made of and concerning" him by alleging he is member of group.
All members of large group: No member of that group may establish this element of the cause of action.
Some Members of Small Group: P can recover if a reasonable person would view the statement as referring to the P. - 186Imputed Contributory Negligence3 parties total: 2 are negligent (driver/cyclist) passenger sues cyclist, cyclist argues liability should be denied under rule of contributory negligent because the driver's negligence is imputed to the passenger)
Think Vicarious Liability - Common Fact Situations: (1) employer and employee; (2) partners and joint venturers; (3) NOT husband and wife; (4) NOT parent and child - Exceptions to 3 and 4 suit for loss of future earnings; (5) car owner and driver (unless respondeat superior is established) negligence of driver will NOT be imputed to owner. - 187Strict Liability Animals - Persons ProtectedLicensees and Invitees: O/O is strictly liable (injuries inflicted by wild animals or abnormally dangerous domestic animals kept by landowner on land) except if owner is under a public duty to keep the animals or if person is trespasser then negligence is standard.
Negligence must be proven
Vicious Watchdogs: Watchdog he knows is likely to cause serious bodily harm could be liable to trespassers (based on intentional tort principles) - 188Strict Liability Abnormally Dangerous ActivitiesActivity is abnormally dangerous if it involves a substantial risk of serious harm to person or property even when reasonable care is exercised. A question of law.
Test: (1) Activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all (2) and the activity is not a matter of common usage in the community. - 189Strict Liability Extent of LiabilityDefendant is liable only to foreseeable plaintiffs. Harm must result from normally dangerous propensity. D's liability can be cut off from unforeseen intervening forces.
- 190Defenses to Strict Products LiabilityContributory Negligence: Ordinary negligence is not a defense where P merely failed to discover the defect or guard against its existence or where P's misuse was reasonable foreseeable.
Assumption of risk is a defense.
Disclaimers of liability irrelevant if personal injury or property damage occurred.
Informationen
- Beschreibung
- Karteikarten am TORTS, erstellt von jessica.fangman am 30/05/2015.
- Erstellt von
- jessica.fangman
- Aufrufe
- 133
- Bewertung