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PHYSICAL/MENTAL INTENTIONAL TORTS- ESTABLISHING INTENT

o Specific intent (intending to bring about specific consequences) ORo General intent (actor knows with “substantial certainty” that these consequences will result) ORo Transferred intent

Both tort intended and tort that results are on this list: Assault Battery False Imprisonment Trespass to Land Trespass to Chattels

o Everyone is capable of intent, even children!- PRIMA FACIE CASES

o BATTERY A harmful or offensive contact With P’s person (or extension thereof) Intent Causation

o ASSAULT A reasonable apprehension by P Of an immediate harmful or offensive contact

Words alone insufficient BUT words can negate apprehension

With P’s person (or extension thereof) Intent Causation

o FALSE IMPRISONMENT Act or omission by D that confines P To a bounded area

No reasonably discoverable means of escape Where she is aware of or harmed by the confinement Intent Causation

o INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS An act by D amounting to extreme and outrageous conduct

May become outrageous because it is:o Continuous/repeatedo Direct toward a certain type of P (children, pregnant women, elderly,

supersenstive Ps whose supersensitivities are known to D)o Committed by a certain type of D (innkeepers and common carriers liable for

even “gross insults” Causing severe emotional distress to P Intent or recklessness Causation Damages

Physical injury not required NOTE: Bystanders may recover if:

Present when injury occurred A close relative of injured person And D was aware of these facts.

o TRESPASS TO CHATTELS/CONVERSION Some harm/great harm to P’s personal property interest in a chattel Intent Causation Damages Actual damages to the chattel or to the possessory rights is required.

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For conversion Interference so great that it warrants requiring D to pay the chattel’s full value.

o TRESPASS TO LAND A physical invasion Of P’s land Intent to enter that piece of land (mistake of ownership irrelevant) Causation NOTE: Anyone in actual or constructive possession of the land can maintain an action for

trespass (lessees)o NUISANCE

Unreasonable interference With P’s use and enjoyment of her property

- DEFENSES TO INTENTIONAL TORTSo CONSENT

Capacity to consent? Consent expressly and knowingly given (not fraudulently obtained or by duress)? Implied by custom and usage OR P’s conduct? D stayed within scope of consent?

o SELF-DEFENSE Reasonable belief that tort is being or about to be committed on D Level of force used in self-defense is reasonable Modern trend: Duty to retreat if can do so safely, unless in the home Initial aggressor CANNOT use self-defense

EXCEPTION: If aggressor retreats and announces that he is not fighting anymore. Privilege extends to third-party injuries caused by the self-defense

o DEFENSE OF OTHERS D reasonably believes the other person is being attacked and would have a right to defend

himself D must use reasonable force

o DEFENSE OF PROPERTY NO use of deadly force Reasonable belief that tort is going to be committed against the property May use force in HOT PURSUIT to recapture a chattel from another who has just wrongfully

taken the property. Must first demand the person return the chattel, unless this would be futile or

dangerous. Cannot recover from some third person who doesn’t have reason to know the chattels

were tortiously obtained. Privilege to enter onto the wrongdoer’s land to reclaim the channel (within reasonable

time and in reasonable manner).o Can enter innocent party’s land if original taking was wrongful + w/in

reasonable time + PEACEFUL manner + notice to owner.o NECESSITY

Public necessity – completely privileged Private necessity – D will owe actual damages, but trespass is privileged, and D may remain on

land until danger passeso PRIVILEGE OF ARREST

Misdemeanor arrest Privileged only if: For a breach of the peace Happens in front of D

Felony arrest by cop Privileged if: D reasonably believes felony has been comitted Reasonably believes the arrestee is the one who did it Degree of force used is what is reasonable to make the arrest

o Includes deadly force when suspect poses threat of SERIOUS HARM Felony arrest by non-cop Privileged if:

Felony was IN FACT committed by arrestee

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D reasonably believed the person he arrested committed ito DISCIPLINE

Parent or anyone in loco parentis (teacher) can whack kids.

PRIVACY/BUSINESS TORTS- DEFAMATION

o Elements: Defamatory statement

“Tending to adversely affect one’s reputation” Must be based on specific facts, or imply knowledge of such facts (innuendo)

Of and concerning P P must be ALIVE

Publication to a third party Damages

Presumed if libel Presumed if slander per se:

o Business/professional reputationo Loathsome diseaseo Unchastityo Crime involving moral turpitude

o Additional if statement involves a matter of public concern: P must prove falsity P must prove fault

If P is a public official or figure D had knowledge that statement was false OR acted in reckless disregard to falsity.

If P is a private figure Negligence as to falsity is enougho Defenses

Consent Truth Absolute privilege

Proceedings in any of 3 governmental branches (esp. judicial) Qualified privilege

Socially beneficial (job recommendation) if D stays on-topic and reasonably believes what she says is true (good faith).

- INVASION OF PRIVACY o FOR LIVING Ps only!o HUMANS ONLY, not corporationso Misappropriation

Appropriation by D Of P’s name or likeness for commercial purposes w/o permission

o Intrusion Intrusion by D Into P’s privacy or seclusion That would be objectionable to a reasonable person

o False light Publication of facts Placing P in a false light That would be objectionable to a reasonable person NOTE if matter is in public interest, MALICE on D’s part must be proved

o Publication of private facts Publication Of private facts about P Regardless of truth That would be objectionable to a reasonable person

- INTENTIONAL MISREPRESENTATIONo Misrepresentation of a material fact (Silence not enough)

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o With knowledge or belief of its falsity (or had not basis to believe it true)o Intent to induce P to act in reliance on the misrepresentation,o Actual reliance by Po Which is justifiableo Actual pecuniary loss

- NEGLIGENT MISREPRESENTATIONo Misrepresentation by Do In a professional or business capacityo Breach of duty toward Po Actual relianceo Justifiable relianceo Damages

- ABUSE OF PROCESS/MALICIOUS PROSECUTIONo Malicious Prosecution elements:

Institution of criminal proceedings against P Termination in P’s favor Absence of probable cause for prior proceedings Improper purpose Damages PROSECUTORS ARE IMMUNE FROM LIABILITY

o Abuse of process Wrongful use of process for an ulterior purpose Definite act or threat against P, in order to accomplish purpose

- INTERFERENCE W/ CONTRACTUAL RELATIONSo Existence of a valid contractual relationship between P and a third party

OR a valid business expectancy of Po D’s knowledge of the relationshipo Intentional interference by Do Inducing breach or ending of relationshipo Damages

- TRADE LIBELo Special damages required

NEGLIGENCE- Prima Facie Case

o Duty Foreseeable plaintiff Standard of care

Reasonable person Professionals – average member of the profession in their community Physical disabilities – reasonable person w/disability Children – reasonable child of like age, education, intelligence, and experience Common carriers – high degree of care Emergency situations – Reasonable person in an emergency situation

Duty to act (omission is breach): Undertaking rescue P placed in peril because of D’s fault Special relationship between parties

o Common carriers/patronso Shopkeepers/patronso Employer/employeeo Parent/childo Parent’s duty to control dangerous children so no harm to 3d parties

o Breach Fact discussion as to whether D met adopted standard of care Violation of statute – negligence per se IF:

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Provides a criminal penalty Statute clearly defines standard of conduct P is w/in the protected class Statute was designed to prevent type of harm suffered by P AND compliance would not be more dangerous than violation

Res Ipsa loquitur Elements:

o Accident would not have happened absent negligenceo The negligence usually is fault of someone in D’s position (such as if D was in

exclusive control) Res ipsa merely allows for inference of negligence to defeat summary judgment. More

proof may be needed to win case.o Causation

Actual (Causation in fact) Joint cause joint liability if both “substantial factor” in injury Summers v. Tice If both negligent, joint liability unless D can prove not at fault

Proximate (Foreseeability) Majority view: Must be w/in foreseeable zone of danger Minority view: Everyone is w/in zone of danger

Intervening causes Intentional torts, crimes, and totally unforeseeable intervening causes cut off liability

o Damages Personal injury Property damage (reasonable cost of repair, or FMV if destroyed) Punitive damages “wanton and willful”, reckless, or malicious conduct

- Defenseso Contributory negligence

Last clear chance NO defense to intentional torts!

o Assumption of the risk P does NOT assume the risk if he has no alternative in an emergency NO defense to intentional torts, but IS a defense to wanton and willful negligence.

o Comparative negligence- Specific negligence problems

o Proximate cause Rescuers always foreseeable Malpractice at hospital treating injured person foreseeable Intended beneficiaries of Ks may be foreseeable

o Owners and/or occupiers of land Duty to undiscovered trespassers none Duty to expected trespassers warn of known, man-made, death traps Duty to licensees (guests) warn of known, latent dangers Duty to invitees (customers) Same as licensees, but must make a reasonable inspection to

discover dangers One loses invitee status if exceeds the scope of invitation (enters back room)

Attractive nuisance elements Owner knows or should know of dangerous condition on property Owner knows or should know children frequent the area Condition is likely to cause injury Expense of remedying situation is slight compared to the risk

o Negligent infliction of emotional distress Elements:

D causes a threat of physical impact that leads to emotional distresso OR directly causes SEVERE emotional distress,

P must be within the zone of danger There must be some physical injury

o Exceptions:

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Mishandling of corpses Erroneous report of relative’s death

o Collateral source rule – P’s insurance recovery not charged against D’s damages (unless it was D’s insurance that paid it)

o Mitigation – P has a duty to mitigate his damages

STRICT LIABILITY- Covered

o Products liabilityo Dangerous and trespassing animals

UNLESS P was a trespasser on D’s propertyo Abnormally dangerous activities

Risk of SERIOUS harm to persons or property Activity cannot be made safe Uncommon in the community

- Elements:o Absolute duty to make completely safeo Breach of that dutyo Causationo Damages

- Defenses:o Contributory negligence NO defense – unless P’s negligence CAUSED a malfunction in the abnormally

dangerous activity

PRODUCTS LIABILITY- Theories

o Strict products liabilityo Negligenceo Implied warrantieso Express warranty/misrepresentation

- Strict products liabilityo Elements:

Presence of defect (strict duty owed by commercial supplier) Defective manufacture Defective design

o Product not safe for its intended useo Could have been made safe w/o serious impact on price or utilityo Compliance w/ gov’t safety standards is not conclusive proof of safe designo Unavoidably unsafe products (knives) are not defectively designed

Failure to warn Defect existed when it left D’s control (breach of strict duty)

Cannot be substantially altered before it reached P Causation

Actual Proximate

Damages Often personal/property injuries only – not economic loss Good against anyone in the chain of commerce (i.e. retailers)

o Retailers can be liable even if had no opportunity to inspect product- Negligence

o Duty Standard of care Foreseeable plaintiff

o Breacho Causation

Actual Proximate

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Retailers not liable if they conducted a reasonable inspection Failure to inspect does not cut off manufacturer’s liability

o Damages- Implied warranty

o Implied warranty of merchantabilityo Implied warranty of fitness for a particular purposeo Bailee and lessees can also be liable hereo Purely economic losses recover in addition to physical injuryo Disclaimers rejected as to economic loss but not physical injury

- Express warranty/misrepresentationo Warranty must have been part of th “basis of the bargain”o Bailees/lessees can be liable

NUISANCE- Private nuisance

o Elements Substantial, unreasonable interference

Hypersensitivity/specialized use of property doesn’t count With someone’s use or enjoyment of his property

- Public nuisanceo Act unreasonably interferes with the health, safety, or property rights of the communityo Damages for an individual will only be awarded if he suffered UNIQUE damages (not just higher in

degree than the public).- Balancing of the hardships

o In granting an injunction, the court will balance the hardships not only to D but to the community at large (i.e. lost jobs)

o If hardship would be great and only a few people are nuisanced, court may deny injunction but grant damages to Ps (cement factory case).

o “Coming to the nuisance” does not prevent lawsuit wino If D’s conduct is willful, no balancing of hardships

GENERAL CONSIDERATIONS- Vicarious liability

o Respondeat superior Employer/employee Tort committed w/in scope of employment

Frolic and detour still within scope of employment, if detour is minoro Independent contractor

Usually no vicarious liability unless non-delegable duty or inherently dangerous activityo Parter/joint venturer liability

Activities conducted in the scope and course of the partnership/ventureo Family car doctrine

Some states hold the owner liable for tortious conduct of immediate family/household members who are driving with the owner’s permission.

Owner may otherwise still be liable for her OWN negligence in entrusting car to a drunk driver, for example.

o Dramshop Acts Impose liability on bartenders for torts caused by drunk third parties.

- Joint tortfeasorso Releaseso Contribution

NOT available for intentional tortso Indemnificationo Summers v. Tice problem

- Survival acts/wrongful deatho Must be there to allow recovery after P dies

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- Intra-family tort immunityo Most states have abolished traditional rule that you could not sue family members in tort

- Public officialso Public officials carrying out their official duties are immune from tort liability as long as acts are done

w/o malice or improper purpose.o Government can’t be sued for applications done in the regular course of government stuff

BUT can be liable for things carried on that are often done by businesses (i.e. operating an HMO)

REMEDIES

FIRST, LOOK TO LEGAL REMEDIES, THEN, EQUITABLE REMEDIES!1. FIRST, EVALUATE THE ADEQUACY OF LEGAL REMEDIES

a. DAMAGES: MONEYb. RESTITUTION

i. MONEYii. REPLEVIN

iii. EJECTMENT2. IF THESE ARE INADEQUATE, LOOK TO EQUITABLE REMEDIES:

a. RESTITUTIONi. CONSTRUCTIVE TRUST

ii. EQUITABLE LIENb. INJUNCTION

1. DAMAGESa. COMPENSATORY DAMAGES

i. General damagesii. Special damages (must be specifically pleaded)

iii. P must mitigate damagessb. NOMINAL DAMAGES

i. Where there’s no actual damagesii. NOT available for torts where damages is part of the prima facie case

c. PUNITIVE DAMAGESi. For “willful, wanton, or malicious conduct”

ii. Can’t be more than 10 times compensatory damages2. RESTITUTION – UNJUST ENRICHMENT

a. LEGAL REMEDIES:i. MONEY

1. D must give back money wrongfully obtainedii. REPLEVIN

1. D must give back specific chattel wrongfully obtained2. D may be able to keep chattel by posting a bond

iii. EJECTMENT1. D must restore land to P

b. EQUITABLE REMEDIESi. CONSTRUCTIVE TRUST

1. A trust to compel D to reconvey title to property unjustly retained.2. Use when property acquired is worth as much as more than his claim (i.e. fraudulently

obtained stock that his subsequently increased in value).3. Requirements:

a. P must show D has title to propertyb. Title can be traced to wrongfully obtained propertyc. D’s retention of property would result in unjust enrichmentd. P has no adequate legal remedies (D bankrupt)

ii. EQUITABLE LIEN1. Lien imposed on D’s property to secure payment of debt owed to P.2. Gives P priority in the property over other creditors

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3. Can be obtained on property that was merely improved w/P’s property or funds (i.e. mechanic’s lien)

4. Use when damages aren’t available, but property acquired is worth less than the claim (i.e. stock that has subsequently decreased in value).

5. Requirements:a. D has title to the propertyb. Title can be traced to wrongfully obtained propertyc. P has no adequate legal remedies (D bankrupt)

iii. DEFENSES1. Laches – unreasonable delay by P in initiating his claim, that results in prejudice to D2. Unclean Hands – P cannot be guilty of unfair dealing w/respect to the transaction sued

upon 3. Sale to BFP

3. INJUNCTION – “I Put Five Bucks Down”a. Are legal remedies inadequate?

i. Damages would be highly speculativeii. The wrong is continuous or will be repeated, P would have to bring a multiplicity of suits

iii. Irreparable injury – damages can’t compensate for loss of unique propertyiv. Prospective tort – no wrong has yet been committedv. Replevin inadequate because D can keep chattel by posting a bond

b. Is there a property right involved?i. Point out that most courts today will protect both property and personal rights by injunction.

c. Is an injunctive decree feasible?i. Must the court exercise too much supervision?

ii. Would it require an act in another stated. Should the hardships be balanced?

i. Encroachment: 1. If the encroachment is intentional, there will be no balancing.2. If the encroachment was innocent, court will balance, but still lean in favor of P.

e. Are there defenses?i. Laches – unreasonable delay by P in initiating his claim, that results in prejudice to D

ii. Unclean Hands – P cannot be guilty of unfair dealing w/respect to the transaction sued uponiii. Freedom of Speech – 1st Amend prohibits injunctions against personal defamationsiv. Criminal Act – equity will not enjoin a crime.

1. May be an exception for public nuisances.