Torts (MA)
Terms
undefined, object
copy deck
- What are the elements of battery?
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1. Harmful or offensive contact
2. To Plaintiff’s person
3. Intent
4. Causation - How do we judge harmful contact? Consent? Can an assault be an indirect touching? How do we define “plaintiff’s person?â€
- Harmful contact is judged by a reasonable person standard. It’s not offensive if consent is implied, so minor bumping on a bus is not battery. It can be an indirect contact (setting a trap for plaintiff to fall into). Plaintiff’s person includes anything connected to plaintiff (clothing, camera, purse).
- What are the elements of assault?
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1. An act by defendant creating a reasonable apprehension in plaintiff.
2. Of immediate harmful or offensive contact to plaintiff’s person
3. Intent
4. Causation - What are the elements of False Imprisonment?
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1. An act or omission on the part of the defendant that confines or restrains plaintiff.
2. To a bounded area.
3. Intent
4. Causation. - What are the elements of intentional infliction of emotional distress?
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1. An act by defendant amounting to extreme and outrageous conduct
2. Intent or recklessness
3. Causation
4. Damages – severe emotional distress - What is extreme or outrageous conduct?
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Conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:
1. It is continuous in nature.
2. It is directed at children, old people, pregnant women
3. Committed by a certain type of D – common carrier/innkeeper - What mental state is required for intentional infliction of emotional distress?
- Recklessness will suffice for IIED.
- What are the elements of Trespass to Land?
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1. Physical invasion of plaintiff’s real property
2. Intent
3. Causation - What are the elements of Trespass to Chattels?
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1. An act by D that interferes with plaintiff’s right of possession
2. Intent
3. Causation
4. Damages - What are the ways you can interfere with plaintiff’s property?
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Intermeddling – directly damaging the property
Dispossession – depriving plaintiff of his lawful right of possession - What are the elements of conversion?
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1. An act that interferes with P’s right to possession in a chattel.
2. The interference is so serious that it warrants requiring D to pay the chattel’s full value
3. Intent
4. Causation - What are the remedies for conversion?
- You can recover the full market value of the item as if undamaged or you can get replevin.
- What are the standard defenses to intentional torts?
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Consent (Express, Implied)
Self Defense, Defense of others, Defense of property
Reentry onto land
Recapture of chattels
Privilege of arrest
Necessity
Discipline
Charles didn't Read Reagan Poor New Dude (Consent, Defense, Reentry of land, Recapture of Chattels, Privilege of arrest, necessity, discipline) - Consent – What is it? Who can give it? What are the different types?
- Consent is consent. Only a person with capacity can give consent (contrast with the fact that no capacity required for committing tort). There are express and implied consent.
- What’s the difference between express and implied consent?
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Express – words spoken or written that give Δ permission to behave in challenged manner.
Implied – arises from custom or usage – If Δ goes to a place where the activity takes place. Typical example = sports.
In sports you consent to all customary activities in that sport, regardless of whether against rules or not. - What determines implied consent? Who judges?
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Implied consent is based on Δ’s reasonable interpretation of P’s objective conduct. This determination is made by a Jury.
Don’t ever consider the Plaintiff’s thoughts, they don’t enter into the formula. - What is the scope of consent?
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All consent has a scope. If Δ goes beyond scope of consent, he’s liable for tort. So, if you invite D into house to watch TV, if you find him in your attic, he’s exceeded the scope of your consent – trespass.
If you give surgeon consent to do a knee-job, and he does a nose job as well, battery – exceeded scope. - What are the keys to defense (of self, others, property)?
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1. Proper timing – the thread Δ is responding to is either imminent or in progress – if completed that’s revenge
2. Reasonable belief of Δ that there is an imminent threat – In other words, a reasonable mistake about the threat will not negate defense, since you only need a reasonable belief.
Ex: You set off alarm, guards stop you, it’s not a false imprisonment.
3. Reasonable force: Must be reasonable - What are the rules about reasonable force?
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Rule: You can only use the amount of force reasonable under the circumstances.
Rule: Deadly force is acceptable if you are in a life/death situation.
Rule: Deadly force is NEVER allowed to protect property – you cannot set traps! - What about the privilege to arrest?
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Invasion of land – if you have privilege of arrest, you can enter another’s land to effect the arrest.
Mistake (Misdemeanor): If arrest is for misdemeanor – actor only privileged for crimes committed in front of you
Mistake (Felony): A police officer may make a reasonable mistake, but a citizen can only make a mistake about identity, not whether crime actually committed. - When is necessity a defense? What is the difference between the two types?
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Only for property crimes.
Public Necessity: When D invades P’s property in an emergency to protect the community as a whole or a significant group of people. Absolute defense
Private Necessity: D invades P’s property in an emergency to protect an interest of his own. Not an absolute defense. He’s making the decision that his property is more valuable than P’s. - What’s the impact of private necessity?
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3 Legal consequences:
* D must pay for actual harm he inflicts – so not much defense
* D not liable for nominal or punitive damages
*as long as emergency continues D can remain on the land – he cannot be ejected. There is a right of sanctuary in an emergency. -
Elements of defamation?
Additional elements for public concerns? -
1. Defamatory language
2. “Of or concerning†the plaintiff
3. Publication thereof by defendant to a third person
4. Damage to plaintiff’s reputation
If public concern, two more elements
5. Falsity of the defamatory language
6. Fault on the part of the defendant -
What about statements of opinion? Can they be defamatory?
Can you defame a dead person? -
Yes – it’s a grey zone, but the court will look at whether a listener would believe the statement is factually based.
You cannot defame a dead person. - What are the differences between libel and slander?
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Libel is defamation in a permanent form – you don’t have to prove damages
Slander is spoken defamation.
Slander per se – really bad slander – treated like libel - What are the topics of slander per se?
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Statements are libel per se if they are about:
1. Business or profession
2. Statements that P has committed moral turpitude
A crime of moral dimension
3. Imputing unchastity to a woman
4. Statement that P suffers from a loathsome disease (leprosy, VD)
If it’s not per se, you have to prove damages – economic harm – not sufficient to show social harm. - What are the defenses to defamation?
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Consent
Truth – D can show words were factually accurate. Not good faith, but objectively true
Absolute Privilege – cannot be lost – judicial proceedings, legislators in debate, federal executive officials
Qualified Privilege – can be lost through abuse. Either if statement not within privilege or if speaker acted with malice. - Elements of Appropriation?
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1. Unauthorized use
2. Of plaintiff’s name or picture
3. For defendant’s commercial advantage
Lability generally limited to advertisements or promotions of products or services.
Caution – newsworthiness exception – can put Tiger’s face on magazine, that’s not an Appropriation.
Look for – packaging, advertising, TM - Elements of Intrusion upon Plaintiff’s Affairs or Seclusion?
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1. The act of prying or intruding
2. Objectionable to a reasonable person
3. The thing intruded into is private
Ex: wiretapping, secret videotaping, peeping.
Caution – P must be in place where expectation of privacy if P in public place, no tort
- No requirement for trespass – although often in concert with a trespass (breaks in to wiretap = two torts - Elements of “Publication of Facts Placing Plaintiff in False Light?â€
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1. Widespread dissemination of
2. A major misrepresentation about the P
3. That would be objectionable to the average person
Different from defamation b/c widespread dissemination, defamation only requires a de minimus publication.
Major misrepresentation is broader than defamation – doesn’t have to be untrue. (Ex: P’s Jewish, D tells everyone in town that he’s Catholic, not defamatory, but false light) - Elements of Public Disclosure of Private Facts about Plaintiff?
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1. Widespread dissemination
2. Of confidential private facts that would
3. Be objectionable to the reasonable person
Example: An accountant sends out private person’s tax returns.
Caution – newsworthiness exception – It’s a tort for WP to publish my medical records, but not Cheney’s
Caution – Dual life problem – P operates in two relatively open spheres – blabbermouth carries info from one sphere to another = no tort - What defenses are there for the privacy torts?
- Consent and the defamation privileges are defenses to the privacy torts. Truth is not a defense!
- Are rescuer’s foreseeable?
- Rescuers are always owed a duty of care even if they were unforeseeable at the outset of the tortious behavior.
- What’s the Andrews view of foreseeability? The Cardozo view?
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Andrews – everyone is foreseeable
Cardozo – Zone of danger - What standard of care for professionals? Skilled people? Specialists?
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Professionals or someone with special occupational skill is required to possess the knowledge and skill of a member of the profession or occupation in good standing in a similar community.
Specialists held to an even higher standard. - What is a guest statute?
- It’s a statute that says one is liable to nonpaying passengers only for reckless tortious conduct.
- Duties for Bailors and Bailees
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Duties owed by Bailor – for a gratuitous bailment, the bailor must inform of known, dangerous defects in the chattel. In a bailment for hire, the bailor must inform of chattel defects of which he is or should be aware.
Duties owed by Bailee – Depends on who benefits from the bailment
i. For sole benefit of bailor – low standard of care
ii. For sole benefit of bailee – high standard of care
iii. Mutual benefit – ordinary standard of care - What is the standard of care in an emergency?
- A D must act as a reasonable person under the same emergency conditions.
- What’s the first question to ask in a landowner liability question?
- How did the plaintiff get hurt? Was it activities carried out by the occupants/agents of occupants or was it by encountering a dangerous condition?
- What standard of care is owed an undiscovered trespasser?
- No duty
- What standard of care owed a discovered trespasser?
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Activities – Reasonable person standard
Conditions – Duty for known, man-made death traps
1. Artificial – built by humans – no duty to protect from natural conditions
2. Highly dangerous – capable of killing or maiming – no duty for only slightly dangerous conditions
3. Concealed from entrant – no duty for obvious conditions
4. One the occupier knew about it in advance – no duty to inspect. - What standard of care is owed for a licensee?
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Activities – reasonably prudent person
Conditions – Duty for all known traps includes natural conditions
1) Concealed – hidden
2) Known
(ex: rotten stair that O knew about)
Licensees are those we like. - What standard of care is owed for an invitee?
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Invitee – persons entering land held open to public
Activities – Reasonably prudent person
Conditions – 2 part test
1) Concealed
2) Known or reasonably discoverable (duty to inspect)
O owes duty to protect from all reasonably knowable traps on the land. - What about child trespassers?
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Heightened duty with respect to artificial condition – duty of reasonable prudence.
One must calibrate the precautions based on forseeability of child entrant. Attractive nuisances. -
What duty is owed to those off premises from conditions on the land?
What about activities? -
There is no duty for natural conditions on the land, but a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.
Also, one must carry on activities on property so as to avoid unreasonable risk of harm to others outside the property. - Duty for recreational land?
- For recreational land without a fee: owner is not liable for injuries suffered by a recreational user, unless the owner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
- How can the landowner satisfy their duty regarding a condition?
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1. Fix the hazard
2. Warn about the hazard – warning satisfies duty. -
For dangerous conditions, what standard of care are owed to:
1. Undiscovered trespassers
2. Discovered trespassers
3. Licensees
4. Invitees
5. Child trespasser -
1. No duty
2. Known, man-made death traps.
3. All known traps
4. All reasonably discoverable traps
5. Duty to warn of or make safe if foreseeable risk to child outweighs expense of eliminating danger - Duties of a lessor and lessee?
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Lessee generally has duty to repair premises.
Lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.
If the lessor covenants to repair, he’s liable for unreasonably dangerous conditions.
If the lessor volunteers to repair and does so negligently, he’s liable. - What are the exceptions to statutory standards of care, negligence per se?
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1. If statutory compliance would be more dangerous than violation, then we don’t borrow statute
2. If compliance would be impossible under the circumstances. - What are the exceptions to the no affirmative duty rule?
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1. Assumption of duty by acting
2. Peril due to defendant’s conduct
3. Special relationship between parties
4. Duty to control third persons – actual ability to control + authority to control -
What are the elements of res ipsa loquitur?
What is its effect?
What do we do with a directed verdict question? -
1. Accident causing injury is a type that would not normally occur unless someone was negligent
2. The negligence is attributable to the defendant (for example by showing the instrumentality was always within D’s control)
It makes a prima facie case and no directed verdict can be given to D. P can still lose if inference of negligence is rejected by fact-finder
Deny D’s motion for directed verdict if P has established RIL or presented some other evidence of breach of duty.
Grant D’s motion if P has failed to establish RIL and failed to present some other evidence of breach of duty. -
What do we do in indirect cause cases?
1. Foreseeable results by foreseeable intervening forces
2. Foreseeable results caused by unforeseeable forces
3. Unforeseeable result caused by foreseeable force
4. Unforeseeable result -
1. Foreseeable results by foreseeable intervening forces – D liable
2. Foreseeable results caused by unforeseeable forces – D probably liable (increased risk of injury)
3. Unforeseeable result caused by foreseeable force – not liable
4. Unforeseeable result caused by unforeseeable force – not liable - Elements of negligent infliction of emotional distress
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1. Defendant creates a foreseeable risk of physical injury to plaintiff by:
A. causing a threat of physical impact that leads to emotional distress (near miss)
B. Directly causing severe emotional distress that by itself is likely to result in physical symptoms.
2. Physical injury (unless erroneous report of relative's death and mishandling relative's corpse) - When are physical symptoms not required by negligent infliction of emotional distress?
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1. Erroneous report of a relative’s death
2. A mishandling of a relative’s corpse -
What four things do we always hold the defendant liable for?
What’s the eggshell plaintiff? -
A. Intervening medical negligence
B. Intervening negligent rescue
C. Intervening protection or reaction forces
D. Subsequent disease or accident – weakened state
Eggshell plaintiff is the hypersensitive victim. D takes his victim as he finds him – liable for all her injuries. - What do you need to show to get injunction?
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Establish liability on merits, then show:
1. No adequate remedy at law ($)
2. P has to show tort implicates a protectable interest (almost a mere formality) For bar, “must show protectable right, here bodily injury is…â€
3. Must show injunction is enforceable
4. Balance the hardships – benefit to P will be greater than harm to D - When won’t an injuction be enforceable?
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An injunction compelling the D to act is harder to enforce.
Property out of state – court’s power is limited. - What are the defenses to an injunction?
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1. Unclean hands – P has also engaged in misconduct – if P commits wrongdoing
2. Laches – delay – prejudicial delay (Ex: you sue for nuisance over factor smell next door – but factory built 6 years ago expanded twice – prejudicial delay)
3. First Amendment – in defamation – injunction might = prior restraint - What are the animal problems?
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1. Domesticated animals – first bite free
2. Trespassing cattle – O strictly liable for damage
3. Wild animals – if you own it, strict liability - Elements of strict products liability
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1. D is merchant – only applies to merchant
2. Show product defective
a. Manufacturing defect
b. Design defect
3. Defect existed when the product left the D’s hands
4. P making foreseeable use of the product
5. Causation
6. Harm -
Common Questions on Products liability
1. Casual seller
2. Service providers providing goods
3. Commercial lessor
4. Does it have to be the merchant you dealt with? -
1. Casual seller – casual seller not strictly liable
2. Service providers providing goods – not strictly liable
3. Commercial lessor – people who lease goods ARE merchants – strictly liable
4. Doesn’t have to be a merchant the consumer dealt with – consumer has a claim against the entire distribution chain. - John’s misusing a product and it injures him. Can he still have a strict liability claim against the manufacturer?
- Yes. As long as the misuse was foreseeable, this doesn’t negate strict liability.
- Elements of misrepresentation
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1. A seller
2. Made a statement of material fact concerning quality or uses of goods (not mere puffery)
3. Intended to induce reliance by the buyer in a particular transaction
4. The buyer did rely on those statements -
When is an employer liable for the torts of his employees? For the intentional torts? For the torts of an independent contractor?
Parents for their children’s torts? -
Always ask first about direct liability!
An employer is liable for the torts of his employees when they are acting within the scope of the employment. Not generally liable for intentional torts unless 1) expressly authorized, or 2) for the benefit of the employer, or 3) force is natural part of job. Employers are not liable for independent contractors except inherently dangerous or nondelegable duties or landowner and invitees.
Parents are not liable for the torts of their children unless agent - What can a married person sue for when spouse is injured?
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1. Loss of services
2. Loss of society
3. Loss of sex
Parent may maintain loss for child’s services as well. - Contribution and indemnity
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Contribution allows a D who pays more than his share to get it from other liable parties – comparative contribution or equal shares
Indemnity – shifts loss between Ds – contract, VL, strict liability, some Js where great difference b/w tortfeasors (one passive, one active) - Can I sue the federal government?
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Yes, er, maybe – the Federal torts claim act has waived immunity for tortious acts. Except for:
1) assault 2) battery 3) false imprisonment 4) false arrest 5) malicious prosecution 6) abuse of process 7) libel and slander 8) misrepresentation and deceit and 9) interference w/ contract rights.
Immunity not waived for acts that are characterized as “discretionary†as distinguished from those acts termed ministerial. - Can I sue a public official?
- Generally no – public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.
- If you're privileged to arrest someone, does that privilege protect you from all misconduct?
- NO - Even if arrest privileged, actor may still be liable for subsequent misconduct (failing to bring arrested party before magistrate, etc.)