TORTS BAR OUTLINE INTENTIONAL TORTS ASSAULT Act with intent to cause reasonable apprehension of imminent harmful or offensive

e touching ELEMENTS o Volitional act by D o Causing reasonable apprehension of immediate harmful or offensive touching

Words alone or conditional and future threats are NOT enough/ can negate reasonable apprehension P has to see it/must have awareness/ Immediacy DEFENSES o Consent

Actual (Express) [go ahead and hit me] invalid if procured by duress OR fraud P must have capacity to give consent (NOT a minor, insane, or drunk) Apparent (e.g. bus, game) [everybody acts in that way] Implied By custom [N.Y. subway] Based on reasonable interpretation of Ps objective conduct [objective standard] EXAMPLES P went to a place or engaged in an activity where certain invasions are customary (fan at baseball game, voluntarily play tackle football) Ds conduct was necessary to save Ps life (P injured and unconscious and doctors performs surgery) Exceeding Consent: the consent is to the Ps conduct NOT its consequences (if P dies in boxing match .. D NOT liable but if D used lead filled gloves -- D is liable) o Defense Self-Defense Defense of Other [stand in their shoes at your peril] [can only use self defense as the party you are defending would be privileged to do] o Assault must be in progress or imminent; use only proportionate force Elements of defense self/other: o threat/invasion is imminent o defense is reasonably necessary o force used is reasonable (NOT excessive D can use same force being used on him) NO defense if aggression is concluded -- can NOT be revenge NOT available to original aggressor [unless retreated and informed other party of such] NO duty to retreat force can only be used to recapture chattel - if in immediate hot pursuit D can be mistaken as to the need for self defense -- if mistake is reasonable if while reasonably defending himself D accidentally shoots 3rd party .. NO liability unless D was negligent Property [non-deadly] Rule: all force must be reasonable deadly force never OK to protect property (NO deadly traps to avoid theft) X can use reasonable force to stop shoplifter but must have reasonable belief he shoplifted Transferred Intent If you intent battery but cause assault instead, law imputes intent.

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 Ex: aiming gun at person 1 and shooting person 2 = assault on person 1 and battery on person 2 BATTERY Intentional harmful or offensive touching of another without consent Have to intent the act not the result ELEMENTS o Intent + volitional act [not accident, not seizure]; or substantial certainty test* (awareness not necessary) o Harmful/offensive touching to the ordinary person [reasonable person standard] o To P or Ps person/dog on leash; horse; dish; cane [ripping dish out of persons hand] o Causation [is always implied] Substantial Certainty Test: o b/c of act there was substantial certainty to P would make offensive conduct ex: there is substantial certainty that woman would make conduct with floor when her chair is moved DEFENSES o Consent Actual (Express) [go ahead and hit me] invalid if procured by duress OR fraud P must have capacity to give consent (NOT a minor, insane, or drunk) before having sex D failed to tell P D has HIV .. NOT a defense to battery Apparent (e.g. bus, game) [everybody acts in that way] Implied By custom [N.Y. subway] Based on reasonable interpretation of Ps objective conduct [objective standard] EXAMPLES P went to a place or engaged in an activity where certain invasions are customary (fan at baseball game, voluntarily play tackle football) Ds conduct was necessary to save Ps life (P injured and unconscious and doctors performs surgery) Exceeding Consent: the consent is to the Ps conduct NOT its consequences (if P dies in boxing match .. D NOT liable but if D used lead filled gloves -- D is liable) o Defense Self-Defense Defense of Other [stand in their shoes at your peril] [can only use self defense as the party you are defending would be privileged to do] o Battery must be in progress or imminent; use only proportionate force Elements of defense self/other: o threat/invasion is imminent o defense is reasonably necessary o force used is reasonable (NOT excessive D can use same force being used on him) NO defense if aggression is concluded -- can NOT be revenge NOT available to original aggressor [unless retreated and informed other party of such] NO duty to retreat force can only be used to recapture chattel - if in immediate hot pursuit D can be mistaken as to the need for self defense -- if mistake is reasonable if while reasonably defending himself D accidentally shoots 3rd party .. NO liability unless D was negligent Property [non-deadly] Rule: all force must be reasonable deadly force never OK to protect property (NO deadly traps to avoid theft)

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X can use reasonable force to stop shoplifter but must have reasonable belief he shoplifted Necessity [also defense to battery] Requires that conduct was necessary to avoid a greater harm

FALSE IMPRISONMENT Intentional physical or psychological confinement of another within fixed boundaries Standard: P does not feel free to leave ELEMENTS o Intent o Act or omission that confines Threats [stop or Ill shoot] Where force is directed against a Ps valuable property and as a result, the P submits to a restraint on her freedom, an action for FI may be sustained Time irrelevant Must have awareness OR be damaged o To bound area No reasonable means of egress to leave [take someone to desert & leave them there FI] No duty to escape DEFENSES o Consent Actual (Express) invalid if procured by duress OR fraud P must have capacity to give consent (NOT a minor, insane, or drunk) Apparent (play game) Implied By custom Based on reasonable interpretation of Ps objective conduct [objective standard] o Lawful arrest officer/citizen can arrest w/o a warrant if crime committed in their presence if NO crime was actually committed: officer: o reasonable mistake as to arresting the right person (ID) -- is a defense o reasonable mistake as to whether or not a crime was committed -- is a defense citizen: reasonable mistake as to arresting the right person (ID) -- is a defense *reasonable mistake as to whether or not a crime was committed -- NO defense o Shopkeeper priv.

A shopkeeper has a privilege to detain a suspect shoplifter for a reasonable time, if he has reasonable grounds, uses reasonable force, and conducts a reasonable investigation. Reasonable: [GIFT] Grounds + Time + Force + Investigation Must show all for shopkeeper defense

INTENTIONAL INFLICATION OF EMOTIONAL DISTRESS [I.I.E.D.] Conduct of an extreme or outrageous nature calculated to cause severe emotional damage

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o [intent or reckless (recklessness can be substituted for intent) acting with disregard
for high probability of emotional distress] Puts emotional status of P at issue ELEMENTS o Intent or reckless [only need either intent or recklessness] o Extreme or outrageous conduct Beyond decency [crack egg on head] or Known sensitivities or fragile class [children, elderly, pregnant] Public [special relationships] [student/professor] Lower standard for common carriers and inkeepers [hotel, bus, planes, trains] liable for even gross insults Conduct repetitive [keeps doing it, or has someone do it sex harassment [have to tell person to stop] exploiting a persons known fear (D knows P is superstitious) insults alone are never sufficient o Causation o Damages Only intentional tort that requires damages Causes severe emotional distress [more than a reasonable person can endure] physical injury is not required Bystander Cases o If D intentionally causes physical harm to V, bystander (B) can sue for IIED B must be Present when injury to V occurred + Closely related to injured person + Deft knew/should have known of 1 and 2 [must intent to inflict emotional distress on bystander] o Bodily harm is not required for family member BUT is required for non-family member (B can also prove IIED by showing normal IIED elements)

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS [NIED] Duty to avoid causing distress to another duty breached when deft creates a foreseeable risk of physical injury through impact or threat of impact To recover, must be injured Elements - P must show: D was negligent in creating a risk of injury to P P was in a zone of physical danger (near miss) P suffers distress *P has physical manifestation of distress (heart attack, twitch to prevent fraud) o EXCEPT when: Erroneous report of relatives death distress is presumed Mishandling of corpse distress is presumed Bystander Cases o bystander can recover for NIED if: o Close relationship/relative of V + o Bystander present at the scene + o P observed or perceived the injury [have to see it happen] * must be in the Zone of Danger to recover * also need shock & illness to recover TRESSPASS TO LAND Intentional entry upon land in possession of another without consent o Invades, remains or fails to remove something from anothers land o Harm is not needed [throwing rock is enough] o Noise & light is NOT trespass

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ENCROCHMENT Encroaching structure is trespass b/c in order to build you had intent. Get an injunction [is ct order] For encroachment do not need harm o Damages: o Rental values; FMV if permanent o Remedy: o Legal Look to benefit of deft o Injunction: If bad faith, tear down If innocent, balancing test [harm to P & harm to D] EXAMPLES -- trespass o doesnt matter if D thought it was his own property o includes throwing something onto Ps land (including water) o causing intangible items to go onto Ps land is NOT trespass (light, sound, smoke, vibrations BUT particles of dust is trespass) o D or Ds item need not touch the ground (throw a ball over Ps yard, dig under Ps land, fly within Ds airspace) -- D liable o P can be anyone w/ actual or constructive possession of the land (AP, lessee, etc) o If D accidentally (but not negligently) enters the land -- NO liability (D hits golf ball straight down fairway but it hits a tree branch sticking out and lands Ps yard causing damage -- NO trespass but liable for damage) Negligent Trespass o For reckless or negligent entry must have damage [NO liability unless there is damage to the land] NUISANCE o Substantial and unreasonable interference with ones use and enjoyment of property [no trespass] [see below] DEFENSES/Privileged Entries to Trespass o Accidental [no liability] [hard to prove] o Consent o Necessity Public protect community [complete defense NO trespass and NO liability for damages] D invades Ps property in an emergency to protect community or group of people (absolute defense --- NO liability for harm, trespass, damage (D shoots Ps dog to protect a group of kids from rabies) Private protect self must be reasonable [incomplete defense NO trespass BUT must pay for damages] D invades Ps property in an emergency (D in danger or to preserve Ds property) D must pay for any damages/harm but NOT punitive damages, nothing if no damage while the emergency continues P can NOT kick D off Ps land o Entry to abate a nuisance [FEDD] Deft must be owner + Demand + Entry reasonable + Force reasonable If squatter on Os land, O can break down fence to recapture his land Mistake is NOT a defense [only intent to enter is required NOT intent to trespass]

Trespass to Land o Damages: o Diminished value

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o Replacement costs o nominals Remedy: o Legal o o

Ejectment/ Unjust enrichment Equitable Constructive trust, Equitable lien (use tracing) Injunction: Get injunction to avoid multiplicity of suits/ continuing trespass

Trespass causing Severance [cut down trees] o Damages: o Diminished value of land attributable to severance, or use conversion measure [Value at time and place of taking + interest and expenses] o Remedy: o Legal Replevin. Quasi-K o Equitable Constructive trust, Equitable lien (use tracing) o Injunction: Land is unique TRESSPASS TO CHATTEL Intentional interference with chattel in possession of another. [i.e. vandalism interference with Ps right to possession] Requires causation + damages as part of prima facie case Must be tangible property [pets are chattel] Damages o D must pay to have property repaired OR liable for diminished value of the chattel; OR o D liable for Ps lost use of the chattel Remedies Diminution in value or cost of repair Reasonable rental value DEFENSES o Consent Actual (Express)/ Apparent Implied Based on reasonable interpretation of Ps objective conduct [objective standard] Defense of Property [non-deadly] Necessity

o
o

CONVERSION Intentional exercise of wrongful dominion or control over chattel of another without consent [e.g. theft] interference is serious enough to justify Ps right to full value of chattel at the time it is taken [the longer the interference the more likely conversion NOT trespass to chattels] [ct considers extent and duration of Ds interference] includes intangible property anyone w/ possession or right to possession can sue EXAMPLES kicking Ps dog -- trespass to chattels; shooting out Os dogs eyes w/ BB gun -- conversion Damages o D entitled to full value of the property at the time it was lost (used price) + interest and expenses
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D gets to keep the chattel upon paying the damages

NO damages required as part of prima facie case Remedy o Forced sale: FMV at time & place of conversion o Replevin, assumsit o Detinue [recovery of prop that was originally legally held [valet take your car] o Equitable: - Constructive trust, equitable lien [use tracing] o Injunction if replevin wont work BUT no injunction if replevin DEFENSES o Necessity o Mistake is NO defense (D takes Ps coat thinking its his own and loses it)

DEFAMATION & PRIVACY [note that these cluster w/ IIED] DEFAMATION Is a defamatory statement of or concerning P published to a 3rd party that results in damages to Ps reputation[do not need intent] ELEMENTS (1) Defamatory Statement o adversely affects your reputation in community; lowers esteem in community defamatory on its face [must be an alleged statement of fact (X is embezzling money from his employer .. defamation) per quod need extrinsic facts to show defamation [see below]. o mere insults are NOT defamatory (P is a jerk .. NO defamation) o opinion is NOT defamation (I think P is a thief .. NO defamation) o Libel: -- fixed form defamation (includes written, radio, TV anything in permanently fixed form) o Libel per se Defamatory meaning is present on its face of the publication without special knowledge o Libel per quod Is a statement that is not libelous on its face but rather is libelous only when combined with knowledge possessed/facts known by the persons to whom the communication is published. Slander per se Crime Loathsome disease Chastity/incompetence Business incompetence [judge was a drunk] (2) of or concerning o Reasonable person understands refers to P [must reasonably identify P] o Colloquium Language makes no reference to P P has burden of proof P must be living person (Ps heirs can NOT sue on his behalf) o Group defamation [if large group of people NOT defamation but if D says one of the barbers is a communist and there are only 3. -- each barber can sue for defamation] (3) publication o To someone other than P [at least 1 person must hear/read Ds statement] statement made only to P is NOT publication (unless 3rd party overheard) or P publishes in good faith herself [in attempt to find source of defamation] o publication need NOT be intentional (D negligently leaves copy of letter on his desk) o Each repetition is separate publication anyone that repeats the statement is liable to same extent as original speaker/writer (newspaper that prints it, TV show that airs it, etc)

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if newspaper repeats what D said w/o reasonable investigation -- newspaper also liable unless newsworthiness Whispering to another overheard is publication

(4) Damages Presumed for o Libel [written] [however if jurisdiction makes distinction between libel per se and per quod P has to prove special damages [monetary loss] if per quod] o Slander Per Se Crime, Loathsome disease, Chastity/impotence, Business incompetence [judge was a drunk] Damages Not presumed for o All Other slander [spoken] o Need pecuniary [monetary] loss [need to prove concrete economic harm] (P lost his job, house sale fell through, business dropped off) [NOT P is sad or women now avoid P] **P (private) does NOT have to prove Ds statement was false unless Constitutional defamation (matter of public concern) (5) if statement is Matter of Public Concern [crime, judge, actor] or public figure o If the def statement is a matter of public concern,

the P must also prove falsity and fault. o if X is a public figure*, he will also have the burden of proving falsity [statement was
fabricated/false] and fault* (actual malice show of reckless disregard for the truth, or knowledge of falsity) *A public figure is one who has achieved pervasive fame or voluntarily injected himself into the public eye. *Fault for The test for fault depends on whether the P is a public figure. The standard public figures is actual malice, which requires the deft to have knowledge of the falsity, or reckless disregard for the truth. The standard for a private figure is negligence. Private person Negligence [shouldnt have talked bad on phone] Public figure Must prove that D Acted with actual malice [fault] = Knowledge of falsity [false/fabricated], OR Reckless disregard for truth [whether it was true or false] Constitutional Defamation: o if Ds statement is matter of public concern o additional element(s) (false + malice IF P is a public figure) o P must show: o defamatory statement concerning P o publication o damages (presumed if P shows actual malice) o statement is false o D made statement maliciously: o Public Figure: o P must show D knew it was false OR reckless disregard for truth Private Figure AND Matter of Public Concern: o If P shows malice (D knew it was false) -- damages presumed o If P shows D negligent (D didnt investigate truth) -- P must prove damages (need NOT be economic) DEFENSES o Consent o Truth [D has burden to prove statement was true] o Privilege

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Absolute Legislature Judicial proceedings [ct complaint included] o Speech and Debate Clause: gov officials in conduct of official duties (prosecutor in ct says D is a child molester -- NO defamation) o NO defamation if D is testifying in court/proceeding Executive official statements [elected reps] Equal-time broadcasts [campaign during election] Communication between spouses Qualified Socially useful (newsworthy) - [public rights to know] Good faith - (reasonably thought it was true) Relevant Free speech EXAMPLES letters of rec, info about Ps credit worthiness, statements made to police X is a murderer Press Fair reporting of public meeting o Accurately describes + o Statements in + o Public proceeding

* **alternate claim to defamation is Privacy: Public Disclosure of Private Facts PRIVACY [Invasion of Privacy] P intentionally and unreasonably intrudes upon another persons life. o Damages: o Mental anguish [cause of action does not survive] o Remedy: o Legal Benefit to deft / accounting for profits [e.g. National Inquirer] o Injunction: Continuing wrong/ damages speculative (1) APPROPRIATION OF NAME/LIKENESS Includes pictures Must show: Unauthorized use of ps name or likeness (pic) + For Ds own commercial advantage w/o permission EXCEPTION newsworthiness newspaper article about Tiger Woods w/o permission -- OK biography about Tiger Woods w/o permission -- OK DEFENSES o Newsworthiness o Consent / permission (2) INTRUSION UPON SECLUSION/SOLITUDE D intentionally and unreasonably intrudes upon another persons private life. (1) P must be in a place where P has Reasonable expectation of privacy (2) Not public (3) Prying is objectionable to a reasonable person a. listening devices, b. peephole in bathroom, c. 2-way-mirrors d. eavesdropping e. peeping tom
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f. making unauthorized video g. installing cam in bathroom h. obscene phone calls made late at night D need NOT trespass - can be committed from a distance (peeping tom) DEFENSES o Consent

(3) PUBLIC DISCLOSURE OF PRIVATE FACTS [alternate claim to defamation]

(1) Highly offensive objectionable to average person (2) Private (confidential but truthful) [not public record] [ex: med records] (3) Publicity widespread dissemination [printed in newspaper, on TV, on internet] P must keep that info confidential (consistently kept private) Truth NO defense EXAMPLES college releases grades to everyone, accountant gives everyone your tax records, doctor shares your medical info with others, etc DEFENSES o Newsworthiness o Consent o Privilege Absolute Legislature Judicial proceedings [ct complaint included] Executive official statements [elected reps] Equal-time broadcasts [campaign during election] Communication between spouses Qualified Socially useful [public rights to know] Good faith Relevant Free speech Press Fair reporting of public meeting o Accurately describes + o Statements in + o Public proceeding (4) FALSE LIGHT To establish a prima facie case for False Light, P must show publication of highly offensive information on a widespread basis. If the matter is of public interest, malice must also be shown. However, truth is a defense. Attributing to P views he does not have or actions he did not take (1) Highly offensive [objectionable to a reasonable person] (2) Publicity widespread dissemination [printed in newspaper, on TV, internet] (3) of false or misleading information (4) about Ps character or background (5) If published material is in public interest malice on part of deft must be proved D can be liable even if the info is complimentary but untrue Damages Allows non-economic damages [such as depression] DEFENSES o Consent o Newsworthiness o Truth o Privilege

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Absolute Legislature Judicial proceedings [ct complaint included] Executive official statements [elected reps] Equal-time broadcasts [campaign during election] Communication between spouses Qualified Socially useful [public rights to know] Relevant Good faith Free speech Press Fair reporting of public meeting o Accurately describes + o Statements in + o Public proceeding

NEGLIGENCE To establish a claim for negligence against deft, P must show that deft owed him a duty as a foreseeable P, that deft breached that duty, and that defts breach was the actual & proximate cause of Ps damages. Finally, deft must not have a valid defense. negligence is a specific tort .. exposing another to an unreasonable risk of harm can be affirmative act OR omission (family relationship, K, Samaritan statutes, creation of peril) (A) Duty Deft had duty to act as RPP under circumstances deft has duty not to harm others. Deft owes duty to foreseeable P w/in the zone of danger (Palsgraf - NO duty owed to unforeseeable Vs outside zone of danger) i. Problem: where deft breaches a duty to one P and causes injury to a second P 1. Cardozo: - geographic zone of danger 2. Andrews: - anyone Standard of Care Reasonably Prudent Person RPP (objective): D must act as RPP would under same circumstances i. NO allowance for mental deficiency (stupid, retarded, insane -- NO defense) ii. NO allowance for inexperience (RPP is a floor not a ceiling) iii. if D has superior knowledge -- reasonable person with superior knowledge iv. Ds physical characteristics are considered (reasonable blind person) but NOT if D knows hes epileptic and drives anyways or D knows he needs to use a cane and doesnt and falls General Standard: i. Custom 1. as evidence of duty/standard ii. Children like age & experience, intelligence, education for 5-18 yrs, unless adult activity [driving car, boats, hunting] than RPP standard under 4 incapable of negligence notwithstanding the above children are liable for intentional torts parents NOT liable for childs negligence unless negligent supervision iii. Adults w/ disabilities 1. RPS w/ that diagnosis, except mental retardation & mental illness: no allowance for: negligence and intentional torts iv. Experts (Professionals) 1. Higher standard of duty acts as RP expert (professional) in community a. same care as an average member of the profession b. practicing in the same or similar community (small town, etc)

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 (specialist held to higher std than general practitioner) need expert to testify re experts action falling below standard LEGAL MALPRATICE a lawyer may be sued for malpractice if she breaches a duty to her client and this breach results in harm to the client. To assert a successful claim against L, P must show that Ls conduct feel below that of any other attorney practicing in the locale and that but for this breach of duty he would not have been harmed. Specifically, P must show L (1) breached a duty to him, (2) causing damages. L owes a client a duty to act as a reasonable prudent L would while representing a client under similar circumstances. [failure to file suit before SOL runs] v. Common Carrier 1. Higher standard of duty must use a high degree of care liable for slight negligence vi. Inkeeper 1. Higher standard of duty vii. Driver / Passenger / Guest: Passenger = a person that gives an economic benefit (chips in for gas or tolls, etc) Guest = gives NO economic benefit Passenger Rule: driver must inspect vehicle and make safe (invitee std) Guest Statute (most states): driver only liable for gross negligence/misconduct viii. Land Owners: (do NOT forget to distinguish activity (RPP) from condition (traps) Always RPP (for discovered trespasser, licensee, invitee all except undiscovered trespasser) [see details below] ix. Others: Viable Fetus - a viable fetus is owed a duty If fetus dies in utero as a result of defts neg., majority of jurisdictions permit recovery for wrongful death, provided the fetus is capable of living independently of the mother even through artificial means are initially needed. Every jurisdiction now permits a child, born alive, to maintain an action in tort for prenatal injuries. [doing drugs during pregnancy] if emergency -- X must act as RPP in emergency (unless X created the emergency) x. Public EEs: cops/firefighters -- NO recovery for injury which is inherent risk of job (no matter that D negligently caused the fire) [firefighter's rule] BUT garbage collectors, postman, bldg inspectors -- D liable for negligence xi. Rescue: NO duty to rescue EXCEPTIONS: [also see omissions] o D put P in peril; OR o special relationship (family, common carrier, innkeeper (fire in hotel), shopkeeper, lifeguard, teacher/student, husband/wife) o rescue only has to be reasonable (throw life preserver, call police, NOT run into burning bldg) o assumption of duty: if you choose to rescue you must rescue reasonably Special Duty Rules Statute P must be in the class of persons statute meant to protect from this type of harm.

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If a statute establishes civil liability, it conclusively establishes standard of care [dog on leash] Class of persons o Is P within the protected class of persons intended to be protected? Class at risk o Was P intended by the statute to be protected from this type of harm?

Effect: Negligence per se [duty/breach] Omission General rule, no duty to act But duty to act if: o Special relationship Parent/child; school-teacher/student; common carrier, shopkeeper, innkeeper, lifeguard, husband/wife o Instrumentalities under defts control ex. Hit & run o Statutory ex: Hit & run o Creation of peril You created Ps peril yourself o Voluntary undertaking Cant leave them worse off Landowner Duties outside land No duty as to natural condition Artificial conditions = duty to inspect Conditions (natural or manmade): Invitee -- knowable traps (duty to inspect) Licensee -- known traps [trap = condition is hidden or concealed (P cant see the danger)] Trespasser Undiscovered trespasser NO duty regardless of activity or condition o Discovered / anticipated Trespasser post warnings of known danger Infant Infant Trespasser (under 18): focus on whether children coming onto Ds land is foreseeable: should know b/c attractive nuisance, etc RPP -- regardless of activity OR condition RPP -- even if D didnt know they were there RPP -- even if NO dangerous condition actually attracted child to the land
Attractive Nuisance Doctrine:

Artificial condition creates unreasonable risk to youth

and utility is slight compared to risk Get injunction o ELEMENTS Artificial condition [deep hole of water] o Known about trespassers [foreseeable child would trespass] [if workers know will be imputed to principal Agency] Unreasonable risk [O knows/should know harm could result] Child cant appreciate the risk Utility v. risk balance [ease of eliminating danger] No requirement that child be injured If no injury get injunction

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 Licensee Someone there for their own benefit social guest, friend, party, neighbor O has a duty to warn of hidden dangers OR make safe [known dangers] Invitee o A landowner owes invitees a duty to warn of all known dangers or those discoverable by inspection. He must make a reasonable inspection of the premises and make safe. There for owners benefit and open to public, business customer Highest duty Must make reasonable inspection Warn of all known dangers, or Those discovered by inspection + Make safe P only enters to use bathroom -- still an invitee i. *RPP duty can always be satisfied by: repairing the condition; OR giving a reasonable warning (oral warning, sign, fence, etc) *if Os property is in urban area -- O must reasonably upkeep the property (tree branch from Os yard falls onto P -- O liable) BUT if Os property in rural area -- NO liability Lessor/Landlord CL: no duty ML: has duty L must warn T of hidden defects existing when T takes over L NOT liable for conditions that come into existence after T takes over L is liable to T or Ts guest for common areas if Ts guest is injured in Ts apt -- L may be liable (T can also be liable) (B) BREACH Deft breached duty when he exposed P to unreasonable harm. A RPP would have Ask what was the specific wrongful behavior [he breached duty when he drove after drinking] Failure to meet the std of care .. P must demonstrate what of Ds conduct constitutes the breach 4 Ways to show Breach (1) Direct: Failed to meet standard, exposing others to unreasonable harm (2) Circumstantial: [tear in carpet] (3) Violation of a statute: Negligence Per Se (NPS): Ds breach can be established if D violated a statute (P must still show causation + damages) statute says must stop at red light, D didnt stop -- conclusive proof of breach ELEMENTS P is member of class of people statute is designed to protect; AND accident is the type of harm the statute is designed to prevent DEFENSES o statutory compliance (1) would have been more dangerous than violation OR (2) was beyond Ds control: o D crosses double yellow line to avoid hitting a child o H runs red light to get W to hospital to have baby o D w/ no known heart problems has heart attack causing him to run a red light (4) RES IPSA LOQUITUR: [use to show breach] the thing speaks for itself -- establishes the element of breach

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applies if P is suing for negligence NOT SL P can show a breach under this doctrine by showing that: (1) Accident does not normally occur absent negligence [planes usually dont crash unless there is neg] (2) It is more likely than not that D was responsible OR, instrumentality was under Ds exclusive control (3) P did not contribute to own injury (4) Effect: gets you to the jury [the effect is neg per se & P will avoid a directed verdict] DEFENSE: Deft will argue 3rd person did it Breach Analysis: Having said that deft had a duty not to drink and drive, we now say he breached that duty when he drove after drinking *if P shows RIL -- P gets to the jury on the element of breach even though we dont know exactly what D did) *if P shows RIL .-- D can NOT get directed verdict -- *if P fails to show RIL -- directed verdict for D D can defeat RIL by showing that its just as likely that 3rd partys negligence caused the accident RIL does NOT shift burden of proof (C) ACTUAL CAUSE [Factual cause] But For test but for Ds breach P would not have been harmed o Concurrent liability [separate negligence actions occur] o Joint tort-feasors [several defts jointly engaged in neg conduct each liable (= jointly and severally liable] o Successive tort-feasors [act independently, cause single indivisible injury] [ex: 2 fires meet to grow into one] o Ex: Original act result would not occur BUT FOR deft playing w/ the wires, his neighbors computer would not have blown up Substantial Factor test o Several causes; any one alone sufficient o if both acts contributed -- D liable if Ds act was a substantial factor in causing Ps injury [2 fires anyone alone would be sufficient] Alternate Causes test o Summers v. Tice 2 acts but only 1 cause, and unknown who caused: -- burden shifts to defts [sue both then they have to prove it wasnt them] o (hunting accident) if only one of 2 Ds acts caused Ps injury but P doesnt know which one Burden of Proof shifts to Ds to show that his act was not the actual cause, if Ds cant -- joint/severable liability (D) PROXIMATE CAUSE [legal cause] many intervening acts if proximate cause is satisfied -- factual causation is always satisfied o 2 elements of proximate cause: o D is liable to all foreseeable Ps within the zone of danger; AND o D is liable for all foreseeable harm resulting from his conduct [has to be foreseeable] (resulting harm not foreseeable .. D NOT liable) Cuts off liability when results are unforeseeable Direct causes Uninterrupted chain of events [link is direct with no intervening factors] Deft liable if foreseeable Indirect causes Dependent Intervening forces that are considered foreseeable foreseeable intervening Event D liable FORESEEABLE intervening causes o If it is foreseeable that an actors neg. would be followed by a second tort, then the first torfeasor is liable for the entire harm.
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[dont cut off original tortfeasors liability he will be liable for all injuries including neg docs at the hospital]

Rescue - Intervening negligent rescue: Rescue is ALWAYS forseeable o If injury aggravated [neg of rescuers] o D hits P w/his car, X comes up and tries to help P but dislocates Ps shoulder - D is liable for the dislocated shoulder (b/c rescue is always foreseeable) o If D injures X and Y comes to help X and Y is injured in the rescue -D is liable for Ys injuries too Reaction - Intervening reaction forces: Efforts to protect self/property [injuries by another reacting to defts actions] o D hits P w/car and others in the intersection trample P -- D liable for the trampling injuries (b/c trampling is a foreseeable reaction to Ds act) Checking/medical treatment - Intervening negligent medical treatment: doctor/paramedic [med mal] D hits P w/his car, taken to doctor, doctor puts on tourniquet too tight and leg must be amputated -- D liable (b/c medial malpractice is foreseeable) Subsequent accident/disease: D hits P with car, good doctor takes care of Ps broken leg, P on crutches falls and breaks his arm -- D is liable for broken arm (also if P hurt on way to hospital if ambulance crashes -- D liable; also if P contracts deadly disease while in hospital -- D liable) Escape Is foreseeable UNFORSEEABLE [cuts off liability] Gross negligence [would cut off liability] o Independent Intervening Forces Are not a natural response or reaction created by deft FORESEEABLE Arguably foreseeable deft liable but only if defts conduct increased the scope of the risk Acts of god, lightening 3P negligence UNFORESEEABLE - Unforeseeable Superceding Event -- D NOT liable o Not within scope of risk deft NOT liable intervening force is superseding o Crime o Intentional tort (E) DAMAGES o In tort only required to put P back in position he was in before tort occurred o Law will not award purely econ damages. [damage, you cant take the bar? Money only] o punitive damages allowed if Ds conduct was willful or wanton General Damages Compensatory for tort o Must be definite and certain - ct will not award speculative damages o Flow from tort; o Purpose: - to make P whole o None for purely econ damages [i.e. if there is no property or physical damage] o P can recover medical damages, property damages, lost wages, pain and suffering but NOT atty fees Special Damages Consequencial o Must be: o Causal [caused by the tort]

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o Foreseeable [look for unlikely chain PC issue] o Certain [business] o Unavoidable [duty to mitigate; - Avoidable Consequence Rule] [not able to collect if does
not mitigate] ex: emotional distress damages o Avoidable Consequence Rule o P must act reasonably to mitigate [duty to mitigate damages] o Collateral Source Rule o Insurance not admissible at trial o In most states amounts received from medical insurance plans and other collateral sources are not deducted from Ps damages. D injures P, P is a military veteran, Ps injuries are covered through Ps veteran benefit -- D still liable for full amount of damages HOWEVER if state abrogates the collateral source rule by statute than medical payments are required to be deducted from Ps recovery. o Joint and Several Liability o Each liable for entire, may sue either/ or both o Contribution o Contribution involves the sharing of the financial burden among tortfeasors. o Each tortfeasor pays proportionate share o In most jurisdictions the pro rata basis is determined by the number of joint tortfeasors involved and NOT upon their relative degrees of fault. o In a minority of jurisdictions, the degree of fault could affect the amount of contribution but will not preclude contribution. o each D is assigned a % of fault, if A pays 100% of Ps damages . A is entitled to contribution from B and C: A 60% at fault B 30% at fault -- owes A 30% of Ps total damages C 10% at fault -- owes A 10% of Ps total damages o Indemnification o Indemnification involves recovery by a non-wrongdoer who has incurred a judgment against the actual wrongdoer or the one responsible for the harm. [retailer may obtain indemnification from manufacturer of defective product] It seeks the FULL amount of the judgment rather than part of it. o One secondarily liable is entitled to indemnification [employer must indemnify you if you acted in course of employment] -- vicariously liable party gets indemnification from active tortfeasor o X has a right of indemnification if X was NOT negligent and was forced to pay for the negligence of Y o Satisfaction o Full recovery from one joint tortfeasor prevents further recovery from any other o Release o CL: release one, release all o ML: release one, does not release all Loss of Consortium non-injured spouse of P also has cause of action against D can recover 3 types of damages: loss of services (mow the lawn, cook food, etc) loss of society (companionship, conversation) loss of sex (F) DEFENSES Contributory Neg [old CL] o Failure to use relevant degree of care for his own safety complete bar to recovery o P should have been aware of the risk o if P has any fault -- NO recovery o is NO defense to SL, intentional torts, willful misconduct i. EXCEPTION
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Comparative Neg. o Modern majority rule o Compare negligence of P & deft and apportion o If P partially at fault for his own injury -- jury weighs fault of P and D and assigns each a %: Ps damages are $100k, D was 75% at fault, P 25% at fault -- P recovers $75k o PURE o P recovers % he was not negligent [P recovers even if 95% at fault] o PARTIAL [Hybrid] o P recovers only if his negligence is equal or less than deft o Recovers % he was not neg o If P 51% at fault -- NO recovery Unit Rule: [aggregation of Defts fault] o If multiple Ds -- Ds fault is added up and compared to Ps, if Ds aggregate fault is less than Ps -- NO recovery in Partial Comp; in Pure Comp -- P can still recover Assumption of Risk o P assumes the risk where he had knowledge [appreciation of danger] and voluntarily encountered/assumed it. - if P knew of the risk and voluntarily went ahead anyways -- NO recovery. o Effect: = complete bar to recovery [bungee jumping, race car driving] o * rescuers NEVER assume the risk o always discuss both Assumption of Risk (subjective) AND Contributory Negligence/Comparative Fault (objective): o Assumption of Risk -- P knows of the risk and voluntarily exposes himself to it (defense to SL) o Contributory Negligence -- P should have been aware of the risk (NO defense to SL) WRONGFUL DEATH Vs living relative can sue on Vs behalf and recover damages Wrongful Death Statute: Ps representative can recover on behalf of dead P for property damage, medical bills, loss of support, loss of consortium but NOT pain and suffering recovery SURVIVAL STATUTES All of the above [for wrongful death] + pain and suffering up until V died (paid to Ps estate) Defamation and Privacy torts do NOT survive Ps death (3rd party can NOT sue for these if P is dead) Survival/Wrongful Death Analysis The executor of a decedents estate or certain other individuals [spouse, children] enumerated by the states wrongful death statute may assert a claim against a tortfeasor for damages caused by the tortfeasors negligence through a wrongful death claim. In a wrongful death action, the executor or other specifically enumerated individuals step into the shoes of decedent for purposes of asserting the claim on the decedents estates behalf. If the decedent survived for even a brief period of time, claim for survival is also possible. In both actions, the party asserting the claim is required to prove the underlying tort she alleges led to the decedents death. STRICT LIABILITY [Liability imposed irrespective of fault] ANIMALS o An owner or keeper of wild animals will be strictly liable for any harm caused by animals dangerous propensities o Domestic

1. Last Clear Chance a. Deft must have been able, but failed to avoid harming P i. Effect: is that contrib. will not be bar to recovery for neg. P o only available to Ps as a rebuttal to Ds claim that P was contributorily negligent

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o No strict liability UNLESS deft has knowledge of [dogs vicious propensities [bitten in the
past -Cal has no one bite rule for dogs = SL] o Trespassing Cattle: SL for any harm caused by your trespassing cattle o Wild Animals o Strict liability [SL] for any harm they cause o But harm must be from dangerous propensities (irrelevant that D trained, de-clawed, used iron cage w/ 6 locks, checked it 10 times a day -- still SL) (SL even if P is injured while fleeing from the wild animal falls and breaks leg)

ULTRA HAZARDOUS ACTIVITY o One who maintains an abnormally dangerous activity may be liable despite exercise of reasonable care o ELEMENTS o (1) activity involves risk of serious harm o

o o o o NOTE: o *must be the specific type of harm expected from that activity (D has a bottle of flammable chemical in his trunk, hes in an accident and chemical spills onto street and P walks across the street and slips -- NO SL, this is NOT the type of harm for which SL applies, instead P must prove D was negligent) (but if de-fanged snake scares a lady and she slips and falls -SL b/c it is likely that a person would run from a snake) o o * Nuisance issue may be raised as well as alternate cause of action. And maybe products liability * Inherently dangerous activity triggers vicarious liability [i.e. Respondeat Superior +/or Independent Contractor]

ex: Acid, Blasting, Toxic chemicals, Radiation, fireworks (2) deft unable to eliminate risk even with reasonable care [cant be made safe] -- safety precautions are irrelevant -- still SL (3) activity uncommon in area where carried out (4) Balance [balancing test] danger v. value to community [use facts to balance] (5) Causation (6) Damages [harm must be anticipated by activity]

VICARIOUS LIABILITY o Use concept of imputed negligence: the negligence of one person may be imputed to another b/c of an existing relationship between them (1) RESPONDEAT SUPERIOR [Master/Servant] o Master is vicariously liable for torts of servant that occur within the course & scope of employment o Worked for; employed by; hired, authority to control [may also be Independent Contractor] o Frolic & Detour o If minor, still within the scope [Master liable] o Intentional Tort o Not within scope UNLESS authorized or furthers masters business [bill collector, bouncer] o Borrowed Servant Rule o If you borrow servant, youre liable (2) NEGLIGENT SUPERVISING o Gets master for his own negligence [not VL Master is directly liable] o A reasonable employer would exercise due care in supervising his employees o Employers liability for negligent supervising will depend upon whether employee was in fact negligent in his work (3) NEGLIGENT HIRING o A reasonable employer would do sufficient checking and research to hire a competent employee. [failed to do background check]
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o o o

Get master for his own negligence [not VL Master is directly liable] Must exercise due care in hiring Employers liability for negligent hiring will depend upon whether employee was in fact negligent in his work

(4) INDEPENDENT CONTRACTOR o Principal is not liable for torts of agent if agent is Independent Contractor o EXCEPTIONS: o (1) Contractor is engaged in inherently dangerous activity o (2) Non-delegable duty Responsibilities so important that employer should not be permitted to transfer the duty to another [issue of fact to be determined by the ct] Although there is no general rule for what is non-delegable, generally cts will hold matters of safety to be non-delegable. ex: maintain roads, fence around construction area; keep street in repair; keep premises safe for business visitors o (3) employer maintains control over IC Collateral Negligence Rule o Master is responsible only for risks inherent in the work; not for collateral negligence of independent contractor

JOINT VENTURE o Each member of a partnership or joint venture is vicariously liable for the torts of another member committed within the scope of the partnership. o ELEMENTS o (1) Agreement + o (2) Common purpose [must be for business] + o (3) Equal rights of voice and control AUTO someone else driving your car o Owner of car NOT vicariously liable for the conduct of another driving your car o EXCEPTIONS o Principal/agent liable if driver is running an errand for O o Negligent entrustment [direct liability] O liable if O knows/should know driver is a negligent driver o You know person is drunk and give him your keys to drive o Statutory Family Purpose Doctrine o O liable if driver is Os family member if using car for family purposes PARENT-CHILD Generally, parents are NOT liable for the torts of their children [neg or intentional] UNLESS negligent supervision o *before doing VL always look to see if P can get D directly (parent leaves gun on table and child shoots a neighbor -- parent directly liable b/c RPP would not leave gun on table) EXCEPTIONS Negligent Entrustment [you know child cant drive and you give him your car] Child of known dangerous propensities [bully; mental illness-being medicated for it; has hit before] Child as parents agent + many parental responsibility laws [school shootings, bullying] PRODUCTS LIABILITY o Products liability refers to a commercial seller who supplies a defective product that causes personal injury or property damage.
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You must show a defect was in existence when the product left defts control. Deft may be the original manufacturer, wholesaler, retailer or any other party in the business of supplying the product. [can sue everyone in the chain] o **If the product is an ultrahazerdous material, you must analyze under both: products liability and ultrahazardous material. o service providers are not merchants for items incidental to service (broken chair at restaurant) but commercial lessors are merchants (Hertz SL for the car it leases to P) D has to be a merchant but not the merchant P dealt with, every merchant in chain of distribution is strictly liable (mfg, distributor, retailer) NO SL for D that doesnt NORMALLY sell this type of product (atty selling a car) (1) STRICT LIABILITY IN TORT o A commercial seller [one engaged in the business of selling or distributing products] who places a defective product in the stream of commerce is strictly liable in tort for injuries to persons and property caused by a foreseeable use of the product. ELEMENTS o (1) foreseeable P [in zone of danger] + Ps use of product was foreseeable o much broader than intended use; misuse is NO defense if foreseeable (standing on a chair, driving over 55 is foreseeable -- foreseeable) o *any foreseeable P (even bystander of person using product) can sue any merchant in the chain of distribution regardless of a contractual relationship between them o (2) Breach/Defect [the defect is the breach] i. Defect Existed when it left D (mfg OR retailer): presumed if product traveled in normal distribution channels o Manufacturer Defect Product not made as manufacturer intended product that hurt P is different from all others that came off assembly line (more dangerous than consumers expect) o Design Defect (1) made as intended [all are defective] + but still unsafe [all need to say on exam] [ex: allergy med caused blindness] (2) foreseeable risks are avoidable by a reasonable alternative design (3) without alternative design, product is unreasonably unsafe (4) alternative design is available and econ. feasible **P may show that Ds product has a design defect if there was a feasible alternative available at the time it was manufactured and if so that the alternative would make the product safer and was economically reasonable. o Inadequate Warning Failure to warn Learned Intermediary Exception for prescription drugs where no duty by seller to warn patient if doctor is informed of the risk [includes blood] o (3) Cause o must be causal link between defect and injury o Actual but for [failure to have kill switch .. .] o PC its foreseeable [if use of product is not foreseeable, PC may cut off liability] o (4) Damages o Injury and property damage are recoverable but intangible damages (lost profits, etc) NOT recoverable o (5) Defense o Assumption of Risk [is complete bar to recovery] o Contrib./comparative neg NOT defense to SL in tort o Disclaimer is NO defense to SL o do NOT fall for Q that says D acted as RPP --- NO defense to SL o o NOTE o alteration of Ds product after it left D can defeat Ps SL claim
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o o o o

Ds safety precautions, quality control, etc are irrelevant if X built the product and sold to D (retailer) -- D is strictly liable if product is defective when sold to consumer D is NOT liable if it didnt put the product in the stream of commerce (it was stolen, etc) xii. If customer buys a defective product that injures friend while customer is using it -- customer is NOT liable for friends injuries under SL BUT might be liable under negligence [shampoo usage]

(2) NEGLIGENCE Duty o Foreseeable - harm o Standard: o Reasonable Prudent Manufacturer [specify exact actions that flow from the duty and were breached e.g. a reasonable prudent manufacturer would have provided a warning] Fault is an issue in neg Breach o Did not act reasonably in putting a warning Actual Cause o BUT FOR no warning Proximate Cause o Its foreseeable when there is no warning, harm will result Damages Defenses o Comparative neg [pure/partial] o Contrib. neg is not majority rule complete bar to recovery if P neg. o Assumption of Risk o Knowing o Voluntary o Effect: complete bar to recovery (3) IMPLIED WARRANTIES (1) Merchantability: Goods of fair and average quality; fit for ordinary purpose [includes absence of warning label] (2) Intended Use: Products must be fit for its intended use + Buyer must rely on sellers recommendation Causation [Actual + Proximate] and Damages [as in SL] Defense Comparative neg Assumption of risk (4) EXPRESS WARRANTY express Statement of fact or promise by commercial seller creates an warranty that becomes part of the basis of the bargain. [samples, advertisements] ELEMENTS Statement of fact or promise concerning goods Commercial seller Goes to the basis of the bargain Causation/damages [went blind] [SL] Defenses [same as neg] (5) MISREPRESNETATION Commercial seller is liable for material misrepresentation of fact o ex: the safe way to cure you allergies [but caused blindness] = misrepresentation ELEMENTS o material misrepresentation o intent to induce reliance

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o justifiable reliance o PC/Damages/Defenses [SL] o Defenses [neg] (6) INTENT THEORY [battery] Commercial seller is liable for injuries caused by an unsafe product if deft intended the consequences ELEMENTS Must show deft intended the consequences [substantial likelihood test] Damages compensatory + punitives DEFENSES o Consent Actual (express) Apparent Implied Based on reasonable interpretation of Ps objective conduct [objective standard] OTHER TORTS NUISANCE Private

o Substantial and unreasonable interference with anothers use and enjoyment of

property. [dust, smoke, chemicals, criminals, noise, light] o Objective standard ELEMENTS o (1) substantial o (2) unreasonable o (3) non-trespassory [ex: noise not entered Ps prop] o (4) Balance: Utility v. Harm [only employer in town] NO recovery for hypersensitive P (P works graveyard, sleeps during day, church bells go off during day, P cant sleep -- P can NOT sue) Public Act significant and unreasonably interferes with health, safety, or property right of community [often DA prosecutes that] To recover, must suffer some unique damage [as private person must prove unique damage] in order to sue Ps specific damage must be a different type than that shared by the general public: if D obstructs highway, fact that P used highway 5 times more than others -- P can NOT sue if P lives next to whorehouse which is damaging the entire community but specifically bothers P b/c of the loud noise -- P can sue (Ps type of harm is different than that of the public) need NOT be prohibited by ordinance, statute, etc Damages: o Loss of use and enjoyment [if permanent, use diminution in value] o Defenses

Coming to the nuisance is NOT a defense to nuisance but merely a factor ct will consider Compliance w/ statute -- is a defense but NOT an absolute defense Remedies Damages [for whats already happened] Injunction [to prevent further damages] [MUST do Inj.] o Legal [assumpsit] Look to benefit to deft o Injunction: Land is unique/avoid multiplicity of suits if continued harm TRO/preliminary/Permanent [depending on circumstances]

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Abatement by self-help [make demand first, have to act reasonably] (1) deft must be owner (2) demand [give notice but deft refused to act] (3) entry reasonable (4) force reasonable MISREPRESENTATION Intentional Misrepresentation (Fraud/Deceit) is SL tort o A misrepresentation of material fact made knowingly with intent to induce Ps reliance, causing P to justifiably rely to his detriment. ELEMENTS o (1) misrepresentation of material fact o (2) scienter (deft knew statement false) o (3) Intent (to induce reliance for P to act/refrain from acting) o (4) Justifiable (reasonable) reliance generally to statement of fact, not just opinion o (5) damages (P must suffer pecuniary [econ] damages) o (6) no defenses NO liability for non-disclosure unless P and D have fiduciary relationship (D (40) at baseball card show, P (12) has $25k card, D offers to trade 4 worthless cards to P -- D wins b/c NO fiduciary duty) fraud requires clear and convincing evidence Fraud o Damages: o Tort out of pocket/ value paid minus value received plus punitives o K benefit of the bargain o Remedy: o Equitable Constructive trust o Injunction: NO, equity will not enjoin a crime Negligent Misrepresentation o False material misrepresentation of material fact which is made with a lack of due care, intended to induce reliance to proximately cause Ps damage [limited to commercial/ professional setting] ELEMENTS o (1) Misrepresentation [by deft in business or professional capacity] [tax consultant, attorney, doc, psychologist] o (2) Breach o (3) Causation o (4) Justifiable reliance o (5) Damages [out of pocket only] BUSINESS TORTS TORTIOUS INTERFERENCE WITH K [Interference with prospective business advantage] o Words or actions by deft intentionally interfering with existing K of P (Ps customers, Ps job), causing damages. (inducing someone to breach K w/ P) ELEMENTS o (1) Valid relationship or business expectation o (2) deft has knowledge of relationship or expectation o (3) intentional interference by deft inducing breach or termination of expectancy [ex: seeks you out and offers more money] Damages Ds motive is a big factor Defense: o competition is expected Business Torts

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Damages: o Losses proximately caused o If bad faith - punitives Remedy: o Legal Benefit to deft o Injunction: To enforce a negative covenant

TRADE LIBEL statements that are harmful to Ps business (NOT Ps personal reputation) ELEMENTS disparaging statement relating to Ps business (products, etc) publication specific business damages resulting directly from Ds harm Trade Secrets o Damages: o Lost profits o Remedy: o Legal Unjust enrichment o Equitable Constructive trust/ bill of accounting o Injunction: TRO/preliminary/permanent IMPROPER LITIGATION MALICIOUS PROSECUTION Initiation of criminal proceedings against P that terminates in Ps favor and for which there was no probable cause and an improper purpose, resulting in damage to P ELEMENTS (1) Institution of criminal proceedings against P (2) termination in Ps favor (3) absence of P.C. (4) improper purpose [ex: gain advantage in custody suit] (5) damages [lost child] [prosecutors immune] Prosecutors have immunity WRONGFUL CIVIL PROCEEDINGS Initiation of civil proceedings against P that terminates in Ps favor and for which there was no probable cause and an improper purpose, resulting in damage to P ELEMENTS (1) Institution of civil proceedings against P (2) termination in Ps favor (3) absence of P.C. (4) improper purpose [ex: gain advantage in custody suit] (5) damages [lost child] ABUSE OF PROCESS Use of criminal or civil proceedings for purposes for which it was not intended. Must be intentional misuse for an ulterior purpose, calculated to cause damage. ELEMENTS (1) wrongful use of process (2) for an ulterior motive (3) definite acts or threats against P to accomplish ulterior purpose REMEDIES
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Legal Remedies o Damages General Damages Compensatory for tort o Must be definite and certain - ct will not award speculative damages o Flow from tort; o Purpose: - to make P whole o None for purely econ damages [i.e. if there is no property or physical damage] Special Damages Consequencial o Must be: o Causal [caused by the tort] o Foreseeable [look for unlikely chain PC issue] o Certain [business] o Unavoidable [duty to mitigate; - Avoidable Consequence Rule] [not able to collect if does not mitigate] ex: emotional distress damages Punitive Damages o need willful, malicious conduct o (1) Due Process protects deft against excessive awards o ratio: for punitives is 3:1 [exception see below] otherwise defts due process right is violated o presumption: compensatory damages made P whole o Exception to punitives: if emotional distress in compensatory, then deft has already been punished [so no punitives] o (2) consider reprehensibility [wrongfulness of conduct] o (1) Physical harm v. econ harm o (2) Indifference/reckless disregard for health/safety of person o (3) Financial vulnerability of injured person o (4) Repeated actions v. isolated incident o (5) Intentional malice/trickery/deceit v. accident o * can get punitives for trespass o (3) proportionality to actual damages o Punitives no more that 1-3 times compensatories [otherwise defts due process violated], unless extraordinarily egregious conduct by deft o (4) wealthy defts pay more *Remember: do NOT get punitives if you have gotten emotional distress payments as part of your compensatory or consequencials. Nominal Damages o Declaration of Ps rights o $1 o Legal Restitution o Money [Assumpsit] o P has the option of not pursuing damages [i.e. Ps losses], but getting a judgment for defts gains instead. o Called quasi K or Assumpsit o Looks to benefit of deft; unjust gains deft received o P may waive tort and sue in Assumpsit o Replevin o Recovery of specific personal property acquired unlawfully, + damages for lost use. [thief cannot convey title no BFP] ELEMENTS o (1) file suit

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o (2) post bond o (3) sheriff seizes prop o (4) deft entitled to notice & hearing o (5) deft can post bond in lieu of releasing prop Detinue o Recovery of personal prop acquired lawfully [bailee situation] o Ex: valet o Can also sue for damages Ejectment o Legal remedy to restore possession of property from which P was wrongfully ousted. [ouster of people who are illegally on your land]

Equitable Remedies [Equitable Restitution] Constructive Trust o Where there is unjust enrichment, or fraud, ct may impose a CT. o Equity creates a trust to compel D to re-convey title unjustly retained. o A CT will also be imposed upon property which is obtained in violation of a fiduciary duty OR confidential relationship. o CT is a Court imposed obligation on deft to convey specific property to P. [equity creates a trust to compel deft to re-convey title unjustly retained] o A ct of equity creates a trust to compel deft to re-convey title unjustly retained. o Ct enforces it by power of contempt. o ELEMENTS [must meet the following elements] o (1) Deft has title o (2) acquisition of title is traceable to defts wrongdoing [some sort of wrongdoing enough] o (3) Unjust enrichment o (4) no remedy at law [e.g. insolvency] [no money left to compensate P for the money he is keeping] o Effect: o (1) P gets appreciation o (2) Property belongs to P; defts creditors have no claim o (3) effective on date of judgment o (4) enforced by contempt powers o (5) deft must transfer title and possession immediately Equitable Lien o Lien secured on defts property to secure payment of debt owed to prevent unjust enrichment. [put lien against prop & when its sold, I get value of that lien] o ELEMENTS o (1) wrongdoer misappropriates Ps assets [money or property] o (2) deft must have title o (3) trace assets into improvements or acquisition of title to defts wrongdoing o (4) defts retention of property creates unjust enrichment o Effect: o Preference over all unsecured creditors up to amount of s money o * Use when prop falls in value and get a deficiency judgment on the rest Tracing Rules [discuss at least 3 on bar] o Way to use equitable restitutionary remedy to prevent unjust enrichment o Change in form does not change character of property o Various states use various rules o (1) lowest intermediate balance in his bank account [you are only entitled to lowest amount in that account] o (2) Option rule victim can follow her money wherever she chooses [can get defts lottery winnings too say he bought ticket with your money]
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o (3) Victim gets proportionate share in constructive trust [e.g. 1000 Ds, 1000
Ps split appreciation 50/50]

o (4) Halletts Case presume deft used his money first - but used Ps money first
for investments Commingled Property o P traces his money to an account that has been commingled to get a constructive trust or equitable lien Accounting For Profits o P can discover the amount of defts gains and use the appropriate restitutionary remedy to disgorge. Defenses to Equitable Restitution o Sale to BFP without notice - cuts off equitable remedies o Creditors are NOT BFPs o Laches o unreasonable delay by P in bringing suit that results in prejudice to deft o Unclean hands o unfair dealings with respect to transactions being sued upon INJUNCTION o Get for encroachment, nuisance, trespass o ELEMENTS [I Pay For Big Dog] o (1) Inadequate Legal Remedy [if legal remedy is adequate then no injunction] o Damages inadequate too small; inadequate, or o Continuing harm multiplicity of suits o Irreparable Injury damages cant compensate for Ps loss of unique land or property, or o Prospective tort wrong has not yet been committed [watch for: no prior restraints of speech] ________________________ o Replevin Inadequate if deft keeps property by posting bond, or Sheriff unable to find property o Ejectment Inadequate if P wants removal of an encroaching structure o (2) Property Right o Today most cts protect BOTH property and personal rights by injunction o Historically cts only protected property rights o (3) Feasibility o (1) supervision ct will not issue a degree that would be difficult to supervise o (2) negative or mandatory injunction Negative [prohibitory] - decrees easy to enforce by cts power of contempt [ct says you cannot do that Mandatory [order to do an affirmative act] more difficult to enforce o (3) Jurisdiction decrees requiring acts in other states problem of supervision/enforcement [contempt] Contempt [is the power the court uses to enforce injunction] o Penalty for violation of ct order o Criminal punishes past conduct o Civil Compensate for harm caused, or Coerce future performance Collateral Bar Rule

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o Requires one to comply with court order even if later injunction is found invalid
[see Con. Law.]

o (4) Balance Hardships depending on type of injunction

o TRO Short term decree to maintain status quo usually no balancing [stop immediate harm] ELEMENTS Emergency [irreparable harm] Ex parte P must post bond 10 days duration PRELIMINARY INJUNCTION Provisional remedy that requires notice + hearing. Purpose is to maintain status quo pending hearing P must show: (1) likely to succeed on the merits + [go back and look at original cause of action] (2) hardships weigh in Ps favor + [balance harm to P & harm to D] o In weighing hardships ct looks at (1) Harm to P if injunction erroneously denied. (2) Harm to deft if injunction wrongfully granted (3) Injunctive relief necessary to maintain status quo + (4) bond [if no TRO granted] PREMANENT INJUNCTION

In certain cases for permanent injunction, court may balance Issued after decision on the merits Encroachments If intentional, no balancing tear down If innocent, balance hardship to P if injunction denied, with hardship to deft if injunction is granted [if unintentional same balancing as in prelim] Nuisance Always balance hardships in nuisance action o Coming to the nuisance is not a defense but merely a factor

(5) DEFENSES to Injunction Laches o Unreasonable delay by P to bring suit that results in prejudice to deft Unclean Hands o Unfair dealings with respect to transaction being sued upon Freedom of Speech o Rule against prior restraints [no prior restraints] o Has to be special community harm o No injunction for defamation o Except: o Trade libel can get injunction o Watch commercial speech Criminal Act o Equity will not enjoin a crime

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