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Intentional Torts

Prima Facie Case (must prove: Act, Intent, and Causation)

1.

Torts Involving Personal Injury

a. b. c. d. 2. 3. a. b. a. b. c. d. e. f. g. h. i.

Battery Assault False imprisonment Intentional infliction of emotional distress Trespass to land Trespass to chattel / Conversion Consent

Battery: Harmful or offensive contact with plaintiffs person Assault: Reasonable apprehension by plaintiff of immediate harmful or offensive
contact

Torts Involving Property Damage

False Imprisonment: Act of intentionally confining plaintiff to a bounded area Intentional Infliction of Emotional Distress: Outrageous conduct causing plaintiff
extreme emotional distress

Trespass to Chattel: interference w/ right of possession of personal property and Conversion: serious interference w/ right of possession of personal prop to justify
actual damage or dispossession

Privileges / Defenses to Intentional Torts

i. ii.

Express Implied

Self-defense Defense of others Protection of property Recapture of property Necessity Authority of law Discipline

Justification Strict Liability

1.

Animals

Exam Answer Format

a. b. c. 1. 2. 3.

Trespassing domestic animals Wild animals Domestic animals

2. Abnormally Dangerous Activities Products Liability


Negligence Breach of Warranty Strict Liability

State the IssuePlaintiff is suing the defendant for . . . State Prima Facie CaseTo establish . . . the plaintiff must show . . .. Apply the Law to the FactsHere, plaintiff will show . . . . Apply DefensesHere, defendant will raise the defense of . . . He must show . . . Raise Other ConsiderationsDefendants employer might be liable because . . . To
Transferred intent is applicable to intentional torts (if intended and resulting torts were intentional, and not IIED)

a.

Types of Claims

i. ii. iii. b. i. ii. iii. iv. v. vi. vii.

Manufacturing Defect Design Defect Warnings/Instructions Contributory Negligence Assumption of Risk Open and Obvious Danger State of the Art Learned Intermediary Preemption

Defenses/Other Considerations

Non-foreseeable Misuse Wrongful Death / Survival Statutes Survival Statutes Defamation

1. 2. 1. 2. 3.

Wrongful Death Statutes

Types of Defamation

a. b. a. b. c.

Libel Slander

First Amendment Constraints Privileges Consent Absolute Privileges Conditional Privileges

BATTERY

(1) Voluntary act + intent to cause substantially certain occurrence of (1) Voluntary act + intent to cause (2) Harmful or offensive Contact (offensive to RP) (no contact or real injury actually (2) That causes P reasonable apprehension has to be made!!) (3) Of Imminent harmful or offensive contact (not nec. real harmfake spider) (3) To Ps person (or objects/people around/connected to it) Mere words not enough; need an overt act of words with conduct b/c words can negate immediacy Was there an assault first? As long as P saw battery coming Threats of future action arent enough Hypersensitivity not taken into account unless D knew about it; Intent can be in the Mental future (set timer on bomb)

ASSAULT TO PERSONS INTENTIONAL TORTS

Physical D liable for unforeseen consequences (including eggshell skull); P doesnt have to

FALSE IMPRISONMENT
(1) Intent to cause (2) Act of restraint/confinement (3) Of P INSIDE a bounded area

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS


(1) Intentional (intent relating to the distress) or reckless (when knowing the risk for harm is high) (2) Extreme or outrageous conduct (3) Causing severe emotional distress (usu, P must have sought medical attn.)

Act of restraint can be a threat or an omission (like failure to produce promised means to
leave someplace, e.g. boat)

Mere insults not outrageous; If conduct is continuous, by a common carrier/inn


keeper, or if P is in a vulnerable class (old, young, pregnant, minority), these can make conduct outrageous

P has to know about it OR be harmed by it P is not bounded if there is a reasonable means of escape that P/ a RP can discover (but
P doesnt have to escape if hes naked or its dangerous)

3 party: liability only when D knows 3p is present Proof: generally no expert; rely on testimony/physical
rd

Some jx: taking someones clothes = false imprisonment Consent negates it

DEFENSES TO PERSONS TORTS

CONSENT
(1) Valid consent absent fraud (2) Scope of consent (3) Consented act must NOT be criminal

SELF-DEFENSE
(1) Imminent threat that cannot be in response to a past tort (2) Reasonable mistake is permissible (3) May not use more force than is reasonably necessary

DEFENSE OF OTHERS
(1) Same rules as self-defense (2) Person is stepping into shoes of person theyre defending ONLY when they cant do it for themselves

A doctor exceeding scope of consent can be liable for Deadly force only if other is gonna kill/seriously injure u batteryneed substitute consent or what RP would Not usually available to the initial aggressor consent to
INTENTIONAL TORTS TO PROPERTY

TRESPASS TO LAND
(1) Intent to (2) Physically enter (3) Ps Land

TRESPASS TO CHATTEL/CONVERSION
(1) Intent to interfere with Ps right to possession (2) Some (TC) / great (C) damage (3) Caused to Ps personal property

Physical invasion can be by person or by tangible object Remedy: only nominal damages; for conversion is cost of repair full value of item; whereas trespass to chattel is only cost of Entry can be intentional (mistake of ownership no defense) or negligent/reckless entry (damage to land OR repair required for liability); true accidental entry has no liability Generally, copying documents isnt conversionunless its really Extends to airspace if interferes w/ use and enjoyment of land; most jx say mining=trespass worth something like the formula for coke Overstaying welcome must be notified that theyre trespassing Bailees who destroy something and BFPs buying stolen goods are
liable

DEFENSES TO PROPERTY TORTS


DEFENSE OF PROPERTY RECAPTURE OF CHATTEL NECESSITY
(1) When threatened injury is way worse than tort committed (2) Private necessity:

(1) Reasonable force may be used to prevent (1) Timely demand of chattel required commission of a tort against prop. (most jx (2) Recovery only from wrongdoer say give warning) (3) No mistake allowedShopkeepers Exception (2) No deadly force (4) Force cant be used unless in hot pursuit of chattel, and then (3) No reasonable mistake it must be reasonable force and not DF

Some jx allow DF if felony like burglary

Land may be similarly recovered, but LLs usually cant use


force to evict

Liable for damages Private interests threatened


(3) Public necessity:

Merchant has privilege to reasonably detain person for

No liability for damages o Public interest threatened

MISCELLANEOUS DEFENSES TO INTENTIONAL TORTS


AUTHORITY OF LAW DISCIPLINE
Parent/ person responsible for child and child, teacher, military officials Force has to be reasonable Local regulations may limit teachers privilege to use discipline Another issue is parent/ child immunity some states abrogated for intentional torts

JUSTIFICATION
Catch-all privilege that can be asserted for public policy reasons

1. 1. Arrest under warrant - police officer executing valid arrest warrant has defense 2. 2. Arrest w/o warrant police/ private citizen may arrest 3. w/o warrant to prevent a felony or breach of peace in his presence 4. 3. If he arrests the wrong person the person wronged has a false arrest claim 4. Any use of force must be reasonable

1. 2.

generally restraint or detention, reasonable under the circumstances and in time and manner, (Ds conduct must be reasonable) imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal ppty in ones lawful possession or custody

STRICT LIABILITY
PRODUCTS LIABILITY ANIMALS
Strictly liable for injuries/damages caused by (1) Domesticated Animals (Not strictly liable for dog bites UNLESS D has knowledge of dogs vicious propensities) (2) Trespassing Cattle/livestock (3) Wild Animals

(1) a. b. c. d. (2) (3) a.

P must find a defect; types: Manufacturing defect Design defect (not safe for intended use, could have been made safe w/o price impact) Failure to warn adequately (no warning req. for open and obvious dangers b/c rewards stupidity) Misrepresentation regarding the character or quality of the product Existence of defect when the product left Ds control Recovery available under theory of: Negligence (must show):

Fencing-in rule (D SL for trespass only if he did not properly


fence in animals)

Fencing-out rule (if P properly fenced land, D SL if animal


trespassed; otherwise D would be liable only for neg.)

Restatement (Third) makes only minimal changes, including


a more sensible and less awkward definition of wild animal and an expansion of strict liability from possessors of wild

i. ii. iii. iv. b. i.

Duty: standard of care, foreseeable plaintiff Breach: unlike strict products liability, need to establish actual breach of duty Causation: Actual, Proximate Damages: physical injury or property damage must be shown

Strict Liability Duty: to every foreseeable user/consumer/bystander; product must not have been altered since leaving D Breach: defect must make product unreasonably dangerous; retailers may also be liable

ii. iii. iv. c. i.

Causation: actual (proven when shown that defect existed when left D/normal distribution=inferred); proximate (shown as in neg. cases) Damages: physical injury or property damage; usually denied if loss merely economical

Warranty Breach Express Warranty: Could arise from a statement of fact or promise about goods OR

ABNORMALLY DANGEROUS ACTIVITIES


Ultra-hazardous and abnormally dangerous activities

(1)
taken

CANNOT be made safe no matter how much care is

i.

Restatement approach

(2) Poses severe risk of harm (3) Is uncommon in the area where conducted Restatement first of Torts (1938) - Imposed SL for ultrahazardous activity, which was defined as an activity that was not a matter of Examples: explosives, highly dangerous chemicals, common usage and which posed a serious risk of harm which could not be prevented (no matter where it took place). a. i. ii. b. i. ii. iii. iv. v. vi. c. a. b. i.
burden. Restatement second of Torts (1977) 519 one who carries on abnormally dangerous activity is SL

only for the harm, the possibility of which makes the activity abnormally dangerous (1)Comparative negligence

DEFENSES TO STRICT LIABILITY

of risk (knowingly engaging in risk) 520 factors to consider in determining whether the activity(2)Assumption is abnormally dangerous: (3)2nd restatement says contributory negligence, too (4)Govt pre-emption for products liability (federal law trumps existence of a high degree of risk of some harm to person, land or chattel state law on product regulation)med. devices=exception likelihood that the harm that results from it will be(5)Open great and obvious danger (6)State of the art (best tech. avail.) Inability to eliminate the risk by exercise of reasonable care (7)Learned intermediary (like a pharmacist/doctor) extent to which the activity is not a matter of common usage inappropriateness of the activity to the place where it is carried out extent to which its value to the community is outweighed by its dangerous attributes

Rests approach to SL is allocative, rather than distributive. Emphasis on picking a liability regime (negl. Or SL) that will control the particular class of accidents in question most effectively, rather than on finding the deepest pocket and placing liability there. Under Rest., if negl. std will take care of the claim, SL may not be necessary. Policy for imposing SL D introduced something dangerous into community which is not normally there enterprise idea vicarious liability idea, if D engages in activities, D should bear the injury. D reaps the benefit, so D should bear its easier for D to spread risk by obtaining insurance reduces transaction costs judicial efficiency encourage actor to shift location of conduct, reduce scale of activity or consider alternatives (stop, use better equipment) stigma of negligence do not want to discourage activity all together, just consider alternatives Who decides whether an activity is abnormally dangerous? It is a question of law for the ct to decide. Limits on SL - defenses

ii. c. d. e. a.

is risk of the loss that occurred one of the things that made the activity abnormally dangerous and subject to SL? E.g. D not liable

DEFAMATION

(1) False and Defamatory Statement a. Must adversely affect Ps reputation b. P must be alive c. Opinions are permissible (2) Of or Concerning P a. Colloquium: if stmt doesnt refer to P on its face, extrinsic evidence may be introduced to establish a connection b. Innuendo (3) Published a. Intentionally/negligently and to 3d parties b. One who republishes stmt made by another is held to be a publisher of defamatory material (4) Caused damages a. Libel (written) does not require proof of damages, it is presumed b. Slander (oral) requires proof of economic damages (special damages) UNLESS slander per se (then presumed) c. Slander per se (Regarding (1) Business/Profession; (2) Chastity of Woman; (3) Crime of Moral Turpitude; (4) P Has Loathsome Disease) For Public Official or Public Concern, 2 additional elements required
(1) P Must Prove Fault by D (if P is public figure, D must have acted w/ actual malice; if P is private, D must have acted negligently) (2) P Must Prove Falsity of Statement

i. ii.

PUBLIC FIGURES Public officials - New York Times Co. v. Sullivan - 1964

1.

Elements: P has to prove:

a. b. c. 2. a. b. iii. 1.

Falsity with actual malice knowledge that it was false or with reckless disregard or whether it was false or not burden of proof clear and convincing evidence

Who is public official? question of law

whether position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who hold it Public figures - Curtis Publishing v. Butts; AP v. Walker - not only public officials, but public figures also need to meet the NYT std. if P is a public figure, P must prove actual malice by clear and convincing evidence

a.

who is a public figure

i. ii. iv.
What is reckless disregard?

general public figure

1. 1. 1. a. b. c. d.

person who enjoys pervasive power and influence or one who enjoys pervasive fame and notoriety

vortex/ limited public figure person who thrust himself into controversy or is drawn into it; person who attempts to influence outcome

St. Amant v. Thompson 1968 test of serious doubt something more than negligence D in fact entertained serious doubts as the truth of publication subjective std. High degree of awareness of probable falsity Jury may ignore Ds allegation of good faith, where

i. ii. iii. v. vi. 1. 2. 1.

D fabricated a story Story is so incredible that only reckless person would have published it There are obvious reasons to doubt the veracity of the informant

What is actual malice? Harte-Hanks Communications, Inc. v. Connaughton 1989 Although failure to investigate will not alone support finding of actual malice, purposeful avoidance of the truth is basis for finding actual malice. Evidence of ill will or departure from std of care relevant, but no dispositive

PRIVATE FIGURES See if P is a public figure.

a. b.

Is there a public controversy? Did the person voluntarily thrust himself into the forefront of that controversy? (assumption of risk?)

MISREPRESENTATION
INTENTIONAL

PRIVACY
APPROPRIATION

(1) (2)

D made a false statement

w/ requisite degree of fault (neg./intent.) (if knowingly, then poss. fraud)

(3) that was material INTRUSION (1) Ds Invasion on Ps Solitude (place where privacy expected/no trespass required) (4) upon which P reasonably relied (2) Objectionable to Average Person (5) to Ps detriment FALSE LIGHT (1) Widespread Dissemination of Major Misrepresentation about P (doesnt need to be Damages (actual pecuniary loss) defamatory) (2) Objectionable to Average Person (Mistake is not defense; in contrast to defamation which Non-disclosure not actionable unless: allows economic recovery, false light also allows for intangibles such as emotional and mental) Based on mutual/ unilateral mistake (particularly if the other party knew of DISCLOSURE
the mistake)

(1) (2) (3)

D Uses Ps Name or Picture For Commercial Advantage Newsworthy Exception

Confidential/ fiduciary relations, so that reliance in good faith was justified,


e.g. husband/wife, atty/client, TTs in common, principal/ agent

Certain types of Ks creating confidential relations, e.g. surety and


guarantee, joint adventure, insurance

Concealment: D intentionally concealed material info from P


NEGLIGENT
(1) Misrepresentation by P in bus/prof capacity (2) Breach of duty owed to foreseeable P (3) P relied (4) Causation (5) Damages

(1)Widespread dissemination of Confidential Info about P (2) Objectionable to Average Person (3) Newsworthy Exception (Dual life fact pattern- gay in private life but not at work, work discloses, it isnt actionable) DEFENSES (1) Consent (2) Defamation Privileges (ONLY for false light and disclosure) (spouses, government officers,

OTHER

(2) statements of opinion a. generally cant recover unless statement implies facts or there is
special relationship

b. some opinions are actionable, e.g atty-client, expert-buyer, unusually


ignorant P.

(3) (4) (5) (6)

puffery? No, b/c everyone know seller is lying Statements about the law? Yes, if statement implies facts Predictions No Statements of intent

INTERFERENCE WITH ADVANTAGEOUS RELATIONS


INJURIOUS FALSEHOOD

1. 2. 3. 4.
pecuniary interest)

D published A false statement About Ps product or business Which is disparaging (or calculated to damage With malice

5. i. j. k.
enough)

Knowing it was false Reckless disregard Ill will (some cts spite/ill will is Which caused special damages (pecuniary), e.g

6.
proof that lost customers

INTENTIONAL INTERFERENCE WITH EXISTING CONTRACTUAL RELATIONS

1.
K

P had valid and enforceable D knew about K D intended to interfere with

2. 3.

WRONGFUL DEATH/ SURVIVAL

a. i. ii. iii.

Wrongful death statutes

Statutory in all states Who are the beneficiaries? spouse, children, parents (majority if child dies w/o a spouse/children) possible under civil unions, if complied with the law before the death occurred - several states adult children may recover parents may recover for death of adult children (some restrict to only if demonstrate financial dependency) for loss of society stepchildren no, majority adopted children? illegitimate children? yes, for the mother wrongful death, some states do not allow recovery for the death of the father, may allow if paternity established. Miss. allows recovery by illegitimate children. If adopted, treated as regular children. parents who abandoned children? Some states limit only if there was support of the child, or recognizing of the child

Who brings the action?

iv.
Elements of damages?

P has to be authorized, usually the first case filed will be the one trial judge may also use his discretion to decide who would be the one statute will usually say personal representative (parent, next friend of the child), beneficiary or all interested parties

a. b. c. d. e. f. g.

loss to survivors/ beneficiaries economic support beneficiaries would have received (value of household services). offset of consumption? Cts differ. Issue for children would they have married and have children so that consumption by children and the spouse would have to be subtracted loss to estate (minority) what the person would have left to his beneficiaries but for his untimely death spouse loss of society, companionship, consortium. Some states calculate as pecuniary damages, mb b/c the statute only authorized pecuniary damages fetus? Some states yes, if viable, some no if stillborn. Some will not allow recovery if the child was not viable at the time of injury, even if born alive parent/ child loss of society and companionship? medical expenses funeral expenses under survival statutes. In Miss. one can recover everything under the wrongful death statute. punitive damages? Different allowed in over a half of states. In Alabama recovery is based on the Ds culpability recovery not subject to debts of estate (except sometimes medical, funeral expenses) goes to the surviving beneficiaries

h. i. v.
Defenses

SOL? (from time of death vs. time of injury) negligence of the decedent (as well as assumption of risk, consent, SD), depending on allocation of fault negligence of beneficiaries? Most states can be raised, but the beneficiaries negligence will not reduce the amount of recovery for other beneficiaries, if several. does personal injury claim brought by decedent before his death bar wrongful death claim?

a. b. i. ii. iii. iv.


always statutory Who recovers? Survival statutes

potential for double recovery

who brings action?

The estate (recovery is subject to debts)

elements of damages?

executor, administrator, heir

v. vi.
SOL?

damages that decedent could have recovered some states exclude defamation

c.

mostly starts running from the time of the injury, not from the time of death

Defenses any defenses that might have been set up against decedent if decedent had lived If both actions are brought, how are damages typically allocated?

i.

Survival

ii.
Wrongful death

Ps pain and suffering prior to death medical expenses lost wages up to time of death

childrens/spouses loss of society and companionship pecuniary amount P would have contributed to children after death What if P dies from injuries sustained after he brought the survival claim? Majority allows survival claim to proceed.

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