Torts Final Exam

1. Voluntary Act: D's state of mind directly physical movement
2. Intent: Act w/ purpose or knowing consequence substantially certain to result
3. Causation: Conduct was SUBSTANTIAL FACTOR in creating harm

D is liable only to Ps who are within the zone of foreseeable harm

If D can foresee harm to anyone as a result of his negligence, a duty is owed to everyone (foreseeable or not) harmed

A person who comes to the aid of another is a foreseeable plaintiff

If the D negligently puts either the rescued party or the rescuer in danger, he is liable for rescuers injuries

Harmful/Offensive contact w/ another person

Harmful: Contact that causes injury/pain

Offensive: Person of ordinary sensibilities would find objectively offensive

Contact: Anything connected to person; awareness not required

Intent to cause contact (or substantially certainty of contact)

Voluntary act causing reasonable apprehension of imminent harmful or offensive contact

Intent: Act w/ intent to cause apprehension or the contact itself

Harm: Concern of contact must be objectively reasonable; awareness required; need not involve fear

Imminent: Future harm not enough; words and circumstances may suffice

Words alone do not constitute an assault, there must be conduct coupled with words

Intent to commit intentional tort transfers across people and across torts

Does NOT apply to IIED

Applies to Battery, Assault, Trespass to land and chattel, False Imprisonment

Act w/ intent to confine/retrain another within fixed boundaries, resulting in confinement such that a plaintiff is conscious of or harmed by the confinement

1) Intentionally causing the plaintiff to be confined, restrained or detained to a bounded area with no reasonable means of escape

2) plaintiff is either aware of harmed by.

Venders/Donors/Social host are NOT liable to third persons for harm caused by an intoxicated able-bodied adult

1. Intoxicated minors
2. Dram shop liability, by statute or common law for harm resulting from the sales to person already "visibly intoxicated" --> FORESEEABLE
3. Social host liability in some states
4. Employer responsibility

In some jurisdictions, detain shoplifter for reasonable time/manner

an intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm

I. Acting intentionally or recklessly
II. w/ extreme or outrageous conduct
III. Causing severe emotional pain

I. Intent/Recklessness
II. Extreme or outrageous conduct
III. Causal
IV. Damage

Intentionally causing physical invasion of another's land

I. Physical Invasion
II. Intent to enter the land

Awareness not required; mistake of fact is no defense

i. The foreseeable likelihood that D's conduct would cause harm
ii. The foreseeable severity of any resulting harm; and
iii. The D's burden (cost or other disadvantages) in avoiding the harm

Landowner is usually not under a duty to protect invitees from open and obvious dangers (such as a pothole in a parking lot or bodies of water)

Substantial and unreasonable interference w/ enjoyment of one's land

Substantial: Objectively offensive, inconvenient, annoying to normal, reasonable person
Unreasonable: When the injury outweighs usefulness of the conduct (Cost-benefit analysis)

unreasonable and substantial interference with interests that affect the community at large, such as public health and safety

Intentional interference w/ plaintiff's right to tangible personal property by dispossessing OR using/intermeddling w/ plaintiff's use of the chattel

Intentional act that deprives P of use, or interfere enough to effectively deprive P of the use

The limited right to use reasonable force to regain possession and control over one's personal property

Force must be reasonably proportionate to threatened harm; reasonable mistake does not invalidate; no duty to retreat in majority of states, but depends on state law

Initial aggressor: Generally cannot claim self-defense

Must reasonably believe necessary to prevent tortious harm; must be reasonable • No deadly force, including traps

Permitted to prevent/end intrusion on land unless visitor claims necessity; or recapture wrongfully taken chattels

Not permitted to regain possession of land (modern rule)

Silence where reasonable person would object, or contact is expected and ordinary; includes emergencies and sports (except for reckless disregard)

Words or actions show willingness to submit to conduct

Fraud and Duress

Defense to trespass to land/chattels committed to prevent substantially more serious injury

To protect many from public calamity; no damages owed

To safe own life/property; actual damages owed for harm caused by trespass

Failure to exercise reasonable care

Duty
Breach of Duty
Causal
Damage

No affirmative duty to help others unless:

Assumption of duty: Voluntary aid
Risk creation: Placing others in peril
Contractual: Contractual obligation
Authority: ie. Parent/Child & Employer/Employee
Relationship: Unique relationship with P (ie. business/patron, employee/employer, parent/child)

Protects medical professionals from liability from ordinary negligence but not gross negligence

an action committed with extreme reckless disregard for the property or life of another person

1. Foreseeability of harm
2. Degree of certainty of injury
3. Closeness between D and injury of P
4. Moral blame w D conduct
5. Policy of preventing future harm
6. Burden of D imposing a duty to exercise care
7. Insurance
8. Public agencies

(F)riends (D)on't (C)ome to (M)y (H)ome b/c (B)achelor (I)n (P)aradise

1. A special relationship exist
2. Special circumstances exist
3. The duty has been voluntarily assumed

Reasonable Prudent person standard in similar circumstances. (Objective Person Standard)

Physical Disability: reasonable person with dis.

Mental Character: mental character irrelevant

Intoxication: Intoxication is irrelevant/ Reasonable Sober Person.

Child Standard: Subjective Test, Age, Experience, Intelligence under similar circumstances.

Child Engaged in Adult activity: Held to standard of reasonable adult; Absence of knowledge, skill or experience

The failure to obtain informed consent is professional negligence even if treatment is skillfully rendered
A physician must disclose all material risks and alternatives, except if:

1. The information is, or should be, known to the patient

2. Disclosure would be detrimental to the patient's best interests

3. There is an emergency

Age (Children)

Religion, emergency, mental deficient, physical disability, intoxication

Public Invitee: Someone invited to either enter or remain on the land for the purpose for which the land is held open to the public

Business Visitor:: Someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor

- The duty to exercise care extends as far as the scope of representation

- The standard of care is reasonableness, not good faith
Liability is imposed only if defendant:
Did what not attorney would do; or
Failed to do what every attorney must do

I. Inspect the property
II. Discover unreasonably dangerous conditions
III. Protect invitee from them

Someone who enters the land of another with the express or implied permission of the land possessor

TYPES OF LICENSEES:
Social Guest

Those with "Tolerated" presence (ie. kids who walk across their land to get to school

Emergency Personnel

I. Correct or warn of concealed dangers that are either known or should be known by the land owner

DOES NOT HAVE A DUTY to inspect for dangers

ONLY to warn of extremely dangerous artificial conditions

A dangerous place, condition, or object that is particularly attractive to children

Land owner may be liable if:
1. They know or have reason to know that children are likely to trespass
2. There is an unreasonable risk of death or serious injury
3. Land owner failed to exercise reasonable care

Defendant fails to exercise standard of care owed to plaintiff

Weigh the BURDEN of precaution (B) against
PROBABILITY (P) and
COST OF LOSS (L);

B vs. P x L

"The thing speaks for itself"

(1) Accident ordinarily does not occur without negligence;
(2) cause was within exclusive control of defendant; and
(3) not plaintiff's fault

Actual Causation

Injury would not have occurred "but for" defendant's negligence

Defendant's negligence was a substantial factor in causing plaintiff's harm

Each tortfeasor's conduct was sufficient to cause a single, indivisible harm

All are jointly and severally liable

Multiple parties acted negligently, but only one actually caused the harm

All are liable unless they show that they did not cause the injury (i.e., burden shifts to defendants)

Summers v. Tice

Liability allotted based on manufacturer's market share of the defective product

1) Each D acted tortiously towards p
2) The actual wrongdoer is one of the small number of Ds
3) All D are joined before the court; and
4) The nature of the accident makes it impossible for the P to prove causation

Each D is subject to full liability for the P injuries, absent proof lack of causation

1. Common design
2. Gives substantial assistance
3. Gives substantial assistance and acted tortiously

two or more persons, acting in concert, to commit misconduct

Negligent misdiagnosis of plaintiff who had <50% chance of survival further reduces the chance of survival

Applies where but-for causation cannot be shows due to preexisting low chance of survival

California = Exculpate
New York = Cannot Exculpate (National Market)

Does the harm caused fall within the scope of liability for defendant's negligent conduct?

The causation principle that makes the negligent defendant liable for an unforeseeable result because of a preexisting condition of the plaintiff.

"Take P as is"

Type of harm must be within the scope of liability

Factual cause of P's harm that contributes to her harm after D's tortious act has been completed

Breaks the chain of proximate causation between D's tortious act and P's harm

A plaintiff must prove actual harm ie. personal injury or property damages

P must take reasonable steps to mitigate damages; "duty to mitigate," but not really a duty that P owes to D but instead is a limitation on P's recovery due to failure to avoid harm that could have been avoided by use of reasonable effort after tort was committed

i. Medical and rehabilitative expenses, both past and future
ii. Past and Future pain and suffering (e.g.., emotional distress) and
iii. Lost of income and any reduction in future earnings

For actual harm and expenses; must prove actual damage

NOT TAXED

To punish and deter conduct when defendant acts willfully, wantonly, recklessly, or w/ malice

Three Due Process limitations (14th Amendment):

o Must be in line w/ reprehensibility of conduct
o Comparable to criminal fines for same conduct
o Single-digit ratio (punitive vs. compensatory damages)

Recovery after wrongful death/injury of a spouse for loss of companionship, services, and/or emotional support, etc.

• Loss of child: Parent might recover; more likely for wrongful death than injury

• Loss of parent: Child can recover for lost companionship in wrongful death

1) D's NEGLIGENCE must result in CLOSE RISK of bodily harm to PLAINTIFF
-P must be IN zone of danger to recover
-D's act must have nearly caused physical harm to P

2) D's negligence results in PLAINTIFF's severe ED

3) PLAINTIFF exhibits some physical manifestation attributable to her ED
-heart attack; miscarriage
-non-physical symptoms like depression or nightmares are insufficient
-symptoms can be instantaneous OR appear days later

death caused by negligence of another person

Not permitted (suit by child for failure to diagnose a defect)

1) Loss of support (income)
2) Loss of companionship, society, and affection

NOT PAIN AND SUFFERING

(or to diagnose congenital defect):

• If brought by child, called wrongful life; not recognized in most states

• If brought by parent, called wrongful birth; permitted in many states to recover medical expenses and/or pain and suffering

Defendant liable for another's negligence

Employers are vicariously liable for employees' torts occurring w/in scope of employment; plaintiff can recover from employee or employer

(1) Acts employed to perform
(2) Activities that profit/benefit employer, or
(3) Acts intrinsic to the employment relationship

Each tortfeasor liable for a single indivisible harm is liable for the whole harm
o Plaintiff can collect from any defendant
o No double recovery

Each tortfeasor is liable only for his proportionate share of the plaintiff's damages

Joint liability only applies when tortfeasor's share of fault is above some proportion (determined by statute)

Shift loss from one party to another

At common law, plaintiff's contributory negligence bars plaintiff's recovery

Recovery reduced by plaintiff's share of fault

Providing a instrument to use by another, knowing that person is likely to use the instrument in a dangerous manner

- P% < D% = Recovery reduced by P fault
- P% > D% = No Recovery
- P% = D% = 50% or no recovery

Plaintiff knowingly and willingly accepted risk of harm and cannot recover

Total Bar from recovery
Plaintiff assumes risk by a contractual waiver that is
(1) clear and unequivocal, and
(2) acceptable on public policy grounds

Plaintiff willingly accepted the risk by her actions

If defendant caused harm, defendant is liable

Total bar from recovery for P
P assumed the risk inherent in the nature of the activity

Partial defense
Treated the same as comparative negligence,
assumes the risk of created by the D

P acceptance of a risk is not voluntary if the D' conduct has left P no reasonable choice so there is no voluntary confrontation of risk

Owner of wild animals strictly liable for harm caused by:

- Dangerous propensity that is characteristic of the animal or that the owner should know of; and

- Plaintiff's fearful reaction to seeing the animal unrestrained


Owner of domestic animals strictly liable if owner knows or has reason to know animal's dangerous propensities

Creates foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and is not a matter of common usage (e.g., explosives, mining, fumigation, hazardous waste disposal)

Harm must result from abnormally dangerous risk to trigger strict liability.

Three Types of Actionable Defects:
Manufacturing
Design
Inadequate Warning

P must show:
1) product was defective (in manufacture, design, or failure to warn),
2) defect existed when product left D's control, and
3) defect caused P's injury when product was used in an intended or reasonably foreseeable way

1) Contains manufacturing defects
2) Is defective in design
3) Defective b/c of inadequate instructions or warnings

Foreseeable
Intended Use

Any deviation from what manufacturer intended product to be that harms plaintiff (compare to manufacturers specifications)

Product's intended specifications are themselves defective

Less safe than ordinary consumer expects*

A design defect exists when the risk of harm from a design outweighs the utility of that design

Risks posed by product outweigh its benefits

Plaintiff also must show a reasonable alternative design (RAD)

Foreseeable risk of harm, not obvious to user, which could have been reduced or avoided by reasonable warnings

Defendants have duty to anticipate and warn users about foreseeable misuse

- Gravity of Danger posed by the challenged designed (Seriousness of danger of product)

- Likelihood that danger would occur

- Mechanical Feasible of safer alternative design 'RAD'
(Reasonable Alternative Design)

- Financial Cost

- Possible Adverse Consequences of Utility that would result from an alternative design

1. Compliance w/ govt. standards

2. "State of the Art" Defense: generally allows defendant to introduce evidence that the product was as safe as possible given the "state of the art" when it was distributed

3. Misuse and other misconduct (unforeseeable use)

4. Pre-emption by Federal Law

Product Liability actions brought under warranty theories generally may be brought not only against a retailer of a product, but also against a manufacturer or distributor of goods, at least when damages are sought for personal injury to property damage

1. Merchantability
- Merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold
2. Fitness for a particular purpose
- Fitness warrants that a product is fit for a particular purpose, but only if the seller knows the particular purpose for which the product is being purchased and the buyer relies on the seller's skill or judgment in supplying the product

An express warranty is a guarantee -- an affirmation of fact or a promise-- made by the seller regarding the product that is part of the basis of a bargain.

False information injurious to someone's reputation

Written, printed, or recorded in permanent form (e.g., radio/TV broadcasts, e-mail)

Spoken word, gesture, or forms other than libel

Must be false

Opinions are actionable if declarant implies knowledge of facts to support the opinion.

i.e. reasonable person must believe language refers to plaintiff, or to a small group of which Plaintiff is a member

- Published/distributed to third party
-Includes repeating /reprinting another's statements
-Does NOT include internet service providers
-Damages plaintiff's reputation

Judicial and legislative proceedings; spouses; required radio/TV publications

Defending defendant's reputation; public interest; response to charge for third party

In slander cases, the P needs to prove special damages, such as lost wages or reduced business income. However, slander is actionable "per se," that is, without proof of damages, if the statement accuses the plaintiff of:
(1) Committing a serious crime;
(2) Having a "loathsome disease" (that is, leprosy or a venereal disease, or perhaps, now, AIDS or SARS);
(3) Being incompetent to practice a chosen business, trade, or profession; or
(4) Being an unchaste woman (now covers "serious sexual misconduct" by a plaintiff of either sex).

(D.I.S.C) Disease, Incompetence, Sexual Misconduct, Crime

Plaintiff must prove falsity (by clear and convincing evidence if plaintiff is a public figure)

Defendant knew statement was false or acted with reckless disregard as to its truthfulness (i.e., scienter)

Anyone in govt. with authority, while acting in that role

Can be unlimited (public for all purposes), limited (public for a particular issue), or involuntary

(1) A criminal or regulatory statute (an administrative regulation or municipal ordinance) imposes a penalty for violation of a specific duty

(2) That the D violated the statute;

(3) That the person is injured is in the class of persons that the statute was enacted to protect; and

(4) That the type of harm or injury that occurred must generally be of the type that the legislation sought to prevent.

1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
a) the seller is engaged in in the business of selling such a product, and
b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

2) The rule stated in Subsection (1) applied although
a) the seller has exercised all possible care in the preparation and sale of his product [Strict Liability] and
b) the user or consumer has not brought the product from or entered into any contractual relation with the seller [Privity of Contract NOT Required]

Total Abrogation
Partial Abrogation

Some states broadly impose a duty of reasonable care regardless of whatever category a person may fall and they treat the categories merely as relevant factors

Some states treat invitees and licensees the same/ treat social guests as invitees.

1. It creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and;

2. The activity is not one of common usage.

Is the partial reimbursement of one joint tortfeasor by another joint tortfeasor

...

Shifting of entire loss from one person to another

Solcum v Food store
State Farm v Campbell
Palsgraf
Biomet Inc v Finnegan
Ybarra v Spangard
Williams v Steves Indus
Summer v Tice (know conditions)
Herman v Wesgate
Kubert v Best
Derdiarian v Felix
Johnson v Minnesota
Foster v Costo
Orthmann v Apple River Campground
Stout v Warren