TORTS PAGE 1

PHYSICAL/MENTAL INTENTIONAL TORTS - ESTABLISHING INTENT o Specific intent (intending to bring about specific consequences) OR o General intent (actor knows with substantial certainty that these consequences will result) OR o 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 Ps 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 Ps 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/repeated o 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 Ps personal property interest in a chattel Intent

TORTS PAGE 2
Causation Damages Actual damages to the chattel or to the possessory rights is required. For conversion Interference so great that it warrants requiring D to pay the chattels full value. o TRESPASS TO LAND A physical invasion Of Ps 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 Ps use and enjoyment of her property DEFENSES TO INTENTIONAL TORTS o CONSENT Capacity to consent? Consent expressly and knowingly given (not fraudulently obtained or by duress)? Implied by custom and usage OR Ps 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 doesnt have reason to know the chattels were tortiously obtained. Privilege to enter onto the wrongdoers land to reclaim the channel (within reasonable time and in reasonable manner). o Can enter innocent partys 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 passes o 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

TORTS PAGE 3
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 D reasonably believed the person he arrested committed it DISCIPLINE Parent or anyone in loco parentis (teacher) can whack kids.

PRIVACY/BUSINESS TORTS - DEFAMATION o Elements: Defamatory statement Tending to adversely affect ones 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 reputation o Loathsome disease o Unchastity o 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 enough o 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 corporations o Misappropriation Appropriation by D Of Ps name or likeness for commercial purposes w/o permission o Intrusion Intrusion by D Into Ps 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

TORTS PAGE 4
NOTE if matter is in public interest, MALICE on Ds part must be proved Publication of private facts Publication Of private facts about P Regardless of truth That would be objectionable to a reasonable person INTENTIONAL MISREPRESENTATION o Misrepresentation of a material fact (Silence not enough) 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 P o Which is justifiable o Actual pecuniary loss NEGLIGENT MISREPRESENTATION o Misrepresentation by D o In a professional or business capacity o Breach of duty toward P o Actual reliance o Justifiable reliance o Damages ABUSE OF PROCESS/MALICIOUS PROSECUTION o Malicious Prosecution elements: Institution of criminal proceedings against P Termination in Ps 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 RELATIONS o Existence of a valid contractual relationship between P and a third party OR a valid business expectancy of P o Ds knowledge of the relationship o Intentional interference by D o Inducing breach or ending of relationship o Damages TRADE LIBEL o Special damages required o

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 Ds fault

TORTS PAGE 5
Special relationship between parties o Common carriers/patrons o Shopkeepers/patrons o Employer/employee o Parent/child o Parents duty to control dangerous children so no harm to 3d parties

Breach Fact discussion as to whether D met adopted standard of care Violation of statute negligence per se IF: 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 negligence o The negligence usually is fault of someone in Ds 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 Defenses o 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 o

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

TORTS PAGE 6
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 Negligent infliction of emotional distress Elements: D causes a threat of physical impact that leads to emotional distress o OR directly causes SEVERE emotional distress, P must be within the zone of danger There must be some physical injury o Exceptions: Mishandling of corpses Erroneous report of relatives death Collateral source rule Ps insurance recovery not charged against Ds damages (unless it was Ds insurance that paid it) Mitigation P has a duty to mitigate his damages

o o

STRICT LIABILITY - Covered o Products liability o Dangerous and trespassing animals UNLESS P was a trespasser on Ds property o 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 safe o Breach of that duty o Causation o Damages - Defenses: o Contributory negligence NO defense unless Ps negligence CAUSED a malfunction in the abnormally dangerous activity PRODUCTS LIABILITY - Theories o Strict products liability o Negligence o Implied warranties o Express warranty/misrepresentation - Strict products liability o Elements: Presence of defect (strict duty owed by commercial supplier) Defective manufacture Defective design o Product not safe for its intended use o Could have been made safe w/o serious impact on price or utility o Compliance w/ govt safety standards is not conclusive proof of safe design o Unavoidably unsafe products (knives) are not defectively designed Failure to warn Defect existed when it left Ds control (breach of strict duty) Cannot be substantially altered before it reached P

TORTS PAGE 7
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 Breach o Causation Actual Proximate Retailers not liable if they conducted a reasonable inspection Failure to inspect does not cut off manufacturers liability o Damages Implied warranty o Implied warranty of merchantability o Implied warranty of fitness for a particular purpose o Bailee and lessees can also be liable here o Purely economic losses recover in addition to physical injury o Disclaimers rejected as to economic loss but not physical injury Express warranty/misrepresentation o 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 doesnt count With someones use or enjoyment of his property - Public nuisance o Act unreasonably interferes with the health, safety, or property rights of the community o 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 win o If Ds 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 minor o Independent contractor Usually no vicarious liability unless non-delegable duty or inherently dangerous activity o Parter/joint venturer liability

TORTS PAGE 8
Activities conducted in the scope and course of the partnership/venture Family car doctrine Some states hold the owner liable for tortious conduct of immediate family/household members who are driving with the owners 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 tortfeasors o Releases o Contribution NOT available for intentional torts o Indemnification o Summers v. Tice problem Survival acts/wrongful death o Must be there to allow recovery after P dies Intra-family tort immunity o Most states have abolished traditional rule that you could not sue family members in tort Public officials o 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 cant 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) o

REMEDIES FIRST, LOOK TO LEGAL REMEDIES, THEN, EQUITABLE REMEDIES! 1. FIRST, EVALUATE THE ADEQUACY OF LEGAL REMEDIES a. DAMAGES: MONEY b. RESTITUTION i. MONEY ii. REPLEVIN iii. EJECTMENT 2. IF THESE ARE INADEQUATE, LOOK TO EQUITABLE REMEDIES: a. RESTITUTION i. CONSTRUCTIVE TRUST ii. EQUITABLE LIEN b. INJUNCTION 1. DAMAGES a. COMPENSATORY DAMAGES i. General damages ii. Special damages (must be specifically pleaded) iii. P must mitigate damagess b. NOMINAL DAMAGES i. Where theres no actual damages ii. NOT available for torts where damages is part of the prima facie case c. PUNITIVE DAMAGES i. For willful, wanton, or malicious conduct ii. Cant be more than 10 times compensatory damages RESTITUTION UNJUST ENRICHMENT a. LEGAL REMEDIES: i. MONEY 1. D must give back money wrongfully obtained ii. REPLEVIN 1. D must give back specific chattel wrongfully obtained

2.

TORTS PAGE 9
2. D may be able to keep chattel by posting a bond iii. EJECTMENT 1. D must restore land to P b. EQUITABLE REMEDIES i. 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 property b. Title can be traced to wrongfully obtained property c. Ds retention of property would result in unjust enrichment d. P has no adequate legal remedies (D bankrupt) ii. EQUITABLE LIEN 1. Lien imposed on Ds property to secure payment of debt owed to P. 2. Gives P priority in the property over other creditors 3. Can be obtained on property that was merely improved w/Ps property or funds (i.e. mechanics lien) 4. Use when damages arent 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 property b. Title can be traced to wrongfully obtained property c. P has no adequate legal remedies (D bankrupt) iii. DEFENSES 1. Laches unreasonable delay by P in initiating his claim, that results in prejudice to D 2. Unclean Hands P cannot be guilty of unfair dealing w/respect to the transaction sued upon 3. Sale to BFP INJUNCTION I Put Five Bucks Down a. Are legal remedies inadequate? i. Damages would be highly speculative ii. The wrong is continuous or will be repeated, P would have to bring a multiplicity of suits iii. Irreparable injury damages cant compensate for loss of unique property iv. Prospective tort no wrong has yet been committed v. 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 state d. 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 upon iii. Freedom of Speech 1st Amend prohibits injunctions against personal defamations iv. Criminal Act equity will not enjoin a crime. 1. May be an exception for public nuisances.

3.