Trespass & Nuisance Duty ADA Question of Law escaping thing Breach Scope = Abnormally Dangerous Risks Causation

n Question of Fact, unless RJ could only decide one way Damages Question of Fact, unless RJ could only decide one way Defenses AR, but R2T = unreasonable; R3T = comparative fault Privileges = consent & authorization (See infra for explanation)

Trespass

(1) Intentional (2) interference with right of exclusive possession of land

Remedies: <> actual; Nominal ok; Maybe punitive; Or injunction

Trespass to Chattel

(1) Direct and forcible (2) Interference of (3) personal property (4) of another (5) without consent or permission (1) Unauthorized assumption and exercise (2) of right of ownership (3) of chattel of another (4) by altering chattels condition (5) or preventing owner from exercising rights of ownership (1) Unreasonable Interference (2) with s use and enjoyment of land (3 may be potentially recurring - not required today (1) An unreasonable interference (2) with the rights (3) of the public Must have standing aka special harm; must be harm that is different in kind than that suffered by members of the public generally Damages: Actual (before and after); Nominal; Punitive Injunction: Where it is equitable (1) Coming to Nuisance & Preemption; (2) Common Enemy Rule not liable for changing land, but cannot cast; (3) Zoning

Conversion

Nuisance - Private

Nuisance - Public

Products Liability

Manufacturing Defect

Strict Liability (1) Defect existed at time of manufacture and sale (2) Product reaches consumer w/o substantial change

Negligence Negligent inspection? Or No due care in quality control/ Manufacturing?

Design Defect

(1) C vs. B (2) Reasonable Consumer (1) Need it? (2) Adequate?

Negligent Design

Warranty (1) Express (2313) (2) Implied Merchantability (2314) (3) Implied fitness for a particular purpose (2-315) See Supra

Misrepresentation -Fraudulent -Negligent -Strict

-Fraudulent -Negligent -Strict -Fraudulent -Negligent -Strict

Warning Defect

(1) Negligent warning? (2) Negligent presentation of warning?

See Supra

Express Warranty (2-313; CL) (i) Affirmation of fact or promise made by seller to buyer which relates to the goods and becomes basis of bargain (ii) Any description of goods which is made the basis of the bargain (iii) Any sample or model which is made part of basis or bargain Implied Warranty Merchantability (2-314; CL) (i) Unless excluded or modified, warranty that goods shall be merchantable is implied if seller is a merchant with respect in goods of that kind. (ii) Goods must be at least: (1) pass without objection (2) fungible goods = fair and average quality (3) fit for their ordinary purpose (4) run of even kind of quality (5) adequately contained, packaged, and labeled (6) conform to promise or affirmations Fitness for Particular Purpose (2-315; CL) (i) Where seller, at the time of contracting, has reason to know of any particular purpose for which the goods are required and buyer is relying on sellers skill or judgment, unless modified

Intentional Torts Defenses are Consent & Privilege Act Touching of a person Result Harm Circumstances that Causes harm or offense (RP) Intent with Intent to touch Defenses Without (1) Consent or (2) Privilege

Battery

Assault

Threatening of a person Act involving: (a) physical barriers; (b) use of or threat of physical force/other duress; or (c) claim of legal authority Intending or continuing civil or criminal judicial proceeding by defendant Use of judicial process

Puts person in reasonable fear of imminent bodily touching that is harmful or offensive Victim is restrained

False Imprisonment

Intent to act and cause result Intend to act and restraint

Malicious Prosecution

(a) Favorable termination of proceeds; (b) injury to the

Lack of probable cause

(a) Intend to institute or continue judicial proceedings (b) Malice Purpose to accomplish improper purpose (a) Intent to engage in act; (b) intend result or reckless as to result

Abuse of Process

Outrage/IIED

Extreme or outrageous conduct

Severe emotional distress to

Criminal Conversation Alienation of Affection

Sexual intercourse Wrongful conduct as to spouse

(a) must show damages; (b) No causation required Loss or reduction of affection

Partner in act marred to another person Person whose affection is alienated is married to another person

Intend to engage in act Intend to engage in wrongful conduct

Interference with

Custodial Relationship

I.

Defenses to Intentional Torts A. Consent

1. B.

Express/Implied

Privilege 1. Self Defense (1) Person may use force against unprivileged attacker to defend self so long as reasonable belief that force is both (2) necessary and (3) proportional Defense of Third Party Same as self-defense but in case of mistake about right to defense there is a J/S (ok if reasonable/not ok even if not reasonable) Protection of Property Person may use force against A to protect/retrieve property in case of an unprivileged threat by A so long reasonable belief that force is necessary and proportional Law Enforcement arrest and right to use force to effect arrest; factors include (a) who is arresting (b) nature of crime and (c) amount of force use Shoplifting Statutes Necessity elements = choice between evils and right to choose lesser; A cannot cause death of B in order to save As life; and (c) choice is imposed by nature Workers Compensation may sue (1) employer - (a) must intend to injure, and in corporation person must be in lofty position to be considered the company and (2) may sue co-employee individually Tort Claims Act (1) Federal/State Tort Claims Act generally bar suit of sovereign for intentional torts of governmental employees; (2) employees are personally liable Provocation not a defense but may be relevant to punitive damages Civil Rights must look at statutes

2.

3.

4.

5. 6.

7.

8.

9. 9.

Defamation Common Law Duty Breach (a) Publication (b) Defamatory Statement of Fact (C) Concerning Plaintiff Causation Damages General Rules = Compensatory & Punitive Special Rules = Libel, Slander Defenses (1) Consent (2) Truth (3) Privilege (4) Retraction (5) Retraction [not real defense but used to eliminate or reduce damages] (6) Workers Comp Exclusivity usually does not bar claim

Constitutional Law

Elements (1) Private v. Public Individual (2) Public or Private Concern? (3) Is the a media or non-media ? (4) Was there Malice? (5) Plaintiff Must Prove Falsity

Causation Must prove Causation

Damages Compensatory tangible/intangible Punitive = malice or knowledge of their falsity If corporation involved = show economic damages Libel = gen damages presumed; some JS, no presumption unless clear on its face or slander per se Slander Per Se = gen damages presumed Slander = no claim unless special damages aka economic loss; then gen damages presumed

Defenses Consent Truth Privilege Absolute/Qualified (must show abuse) Retraction

Overall Categories Constitutional Law Figure Public Concern Public Media ? Media Test Actual Malice Actual Damages Falsity Standard: clear and convincing evidence Negligence as to the falsity Actual Damages Falsity Punitive Damages Allowed if Actual Malice No Con Law help, you can only analyze under CL tort elements

Private

Public

Media

Private

Private

Non-Media

Reform Proposals A. With any reform proposed: What is the problem? How will reform fix the problem? B. Some proposals Strict liability Declaratory Judgment Optional correction or retraction statutes Right of reply; mandatory duty of retraction or correction

Privacy Torts Duty Breach (1) Intrusion into the seclusion of another; (2) private matter; (3) highly offensive to the RP; (4) no legitimate public concern in the matter (1) Does JS recognize?; (2) publicity; (3) false light; (4) highly offensive to the RP; (5) injures the reputation (1) Publicity; (2) must be a private matter of the s life; (3) highly offense to RP; (4) no legitimate public concern for the matter (1) Commercial appropriation; (2) s name, (3) likeness; (4) Lack of consent; (5) No free speech right to use it Intent Intend to intrude Defenses Consent

Intrusion

False Light

Consent

Public Disclosure of Private Facts

Consent

Appropriation

Consent