2024 Torts Finals Review PDF

Torts Final Exam Review Nusaybah Khan & Jonah Burch   Contact Information  Email: Nusaybah ([email protected]); Jonah ( [email protected])  Phone: Nusaybah (405-635-4636); Jonah (346- 332-9646)  Office Hours...

Torts Final Exam Review Nusaybah Khan & Jonah Burch   Contact Information  Email: Nusaybah ([email protected]); Jonah ( [email protected])  Phone: Nusaybah (405-635-4636); Jonah (346- 332-9646)  Office Hours Reminders  Time(s):  Jonah: Mondays, 1 PM  Nusaybah: Wednesdays, 4 PM  Last tutoring session for Torts!  Go to Prof. Lauriat’s office hours with your sample answers for feedback! Important Dates  Thursday, November 21, 2024  Last Day of Classes (for Torts)  Monday, November 25, 2024  Professor Lauriat answering questions by email and Zoom throughout the day.  Tuesday, November 26, 2024  Reading Day  November 27–29, 2024  Thanksgiving – No tutoring/office hours  Friday, November 29, 2024  Last day for questions for Jonah  Saturday, November 30, 2024  Last day for questions for Nusaybah  Tuesday, December 3, 2024; 8 AM – 12 PM; Lanier  Torts Final Supplemental Materials (OPTIONAL)  Professor Lauriat’s recommendation:  A Short and Happy Guide to Torts  Strategies & Tactics for the MBE (Second Edition)  Other suggestions:  West Academic Study Aids  ExamPro (practice questions)  Barbri 1L Mastery  Quimbee  Gilbert  Examples & Explanations  The Perfect Practice Exam: The Skill of Legal Analysis  Themis  Kaplan Miscellaneous  Cases  Know if Professor Lauriat has cases in her PowerPoint multiple times. (If it has 2+ slides, it’s a keeper.)  Know if Professor Lauriat repeatedly mentions case in class  You do not have to memorize the citation  Case name, or  Identifiable description of case is sufficient  Professor Lauriat’s preferred method for final exam hypotheticals:  ALF (Analyze Law & Fact)  Refer to example answers from class. Keep answers concise.  Battery Assault False Imprisonment Yes INTENTIONAL TORTS Trespass Conversion Intentional ? Outrage (IIED) Yes NEGLIGENCE Abnormally Dangerous No Duty of Care? Activities No STRICT LIABILITY Liability for Animals Respondeat Superior INTENTIONAL TORTS INTENT  OBJECTIVE, but contextual from the perspective of the π  Would a reasonable person of ordinary sensibility in π’s shoes have believed the ∆ intended to harm? Single and Dual Intent  Single Intent  Tortfeasor must intend to make contact  contact ends up being offensive or harmful  Dual Intent  π must prove:  1. tortfeasor intended to touch AND  2. tortfeasor intended touch to be harmful or offensive  Single intent is easier to prove than dual intent  Jurisdiction determines approach TRANSFERRED INTENT  Transferred intent is when a defendant intends to harm person 1, but unintentionally harms person 2, or π, instead.  ∆’s intent to harm person 1 is transferred to π  i.e., π can establish “intent” element Intentional Torts 1.Battery 2.Assault 3.False Imprisonment 4.Trespass  Property  Chattel 5.Conversion  property 6.Outrage (intentional infliction of emotional distress) BATTERY Battery  Defendant’s intent to bring about harmful or offensive contact to plaintiff's person that causes harm or offense.  Elements: 1. Intent (by ∆)  To bring about harmful or offensive touching 2. To π’s person 3. ∆'s action causes a harmful or offensive touching to π's person Harmful or Offensive  Objective standard referring to touching that is likely to or capable of causing harm or offending a reasonable person by violating prevailing social standards of acceptable touching.  Caveat:  an inoffensive contact may be offensive if the ∆ knew π was unusually averse to such a contact. ASSAULT  Assault An intentional act that puts another person in reasonable apprehension of imminent harmful or offensive contact. Elements: 1. An act by ∆ causing reasonable apprehension of immediate/imminent harmful or offensive contact to π’s person 2. Intent by ∆ to bring about apprehension of immediate/imminent harmful or offensive contact with the π’s person.  NOTES:  Physical injury is not required. Terminology APPREHENSION  Reasonable apprehension in context of assault, refers to the πs reasonable belief that the act will lead to imminent harmful or offensive contact.  π does not need to prove fear, only that they were aware that such a contact might occur.  If π and ∆ do not know each other, then ordinary reasonable person standard under same circumstances as π  If π & ∆ have special knowledge of each other  special knowledge may be considered when determining whether πs apprehension was reasonable. IMMINENT/IMMEDIATE  The threatened harmful or offensive contact must be certain or likely to occur very soon. FALSE IMPRISONME NT  False Imprisonment The act of restraint on another person which confines that person in a restricted area. Elements: 1. An act (or omission to act) by ∆ that confines or restrains the π to a bounded area; and  Boundaries set by ∆ 2. Intent by ∆ to confine or restrain the π to a bounded area  Freedom of movement is somehow restricted  Inconvenience ≠ confinement.  Note:  π has to be aware of the confinement False Imprisonment  π unaware of reasonable escape  Shopkeeper’s Privilege  Shopkeeper is not liable for false imprisonment if they detain a shopper for a reasonable amount of time, in a reasonable manner, and upon reasonable belief of theft.  Shopkeeper’s privilege is an affirmative defense to false imprisonment tort.  Merchant’s Recapture of Chattels  Rules of “fresh pursuit” still apply  Injury not required! TRESPASS RELATING TO PROPERTY Trespass to Land  Occurs when individual physically invades an owner’s real property or causes an object or a third person to invade property.  Elements: 1. An act of physical invasion of π’s real property by ∆ 2. Intent of physical invasion of π’s real property  Trespass to Land  Land can be reasonable air above and reasonable ground below surface level of π’s property  Light or smell does not count  Trespass protects the right to exclusive possession of land  Remember: Nuisance is the right to use and enjoyment of land  Injury not required! CONVERSIO RELATING TO PROPERTY N Conversion  Occurs when a party takes the chattel property of another with the intent to deprive them of it.  Elements:  1. An act by ∆ interfering with π’s right of possession in chattel  2. Intent to perform the act bringing about the interference with π’s right of possession  3. Injury/Damages  Conversion applies to personal property.  Conversion v. Trespass to Chattel CONVERSION TRESPASS TO  ∆ exercises such CHATTEL  Trespass to chattel may be committed “dominion and control by intentionally over chattel” as to  Dispossessing another of the interfere with π’s right chattel, or over property such that ∆  Using or intermeddling with a may justly be required to chattel in the possession of pay π the full value of the another chattel  Remember:  Severe damage/complete  Trespass to chattel = light destruction = conversion conversion  Some damage/lost value to personal property = trespass to chattel Conversion (Common Fact Patterns)  Stolen item  No title transferred  Stolen cash  No title to be able to transfer  Item taken using fraud  Voidable title transferred  Damage to an item  Misuse of someone else’s loaned property (horse and buggy used for alcohol run)  INTENTIONAL OUTRAGE INFLICTION OF EMOTIONAL DISTRESS (IIED) Outrage (Intentional Infliction of Emotional Distress) When one acts in a manner that intentionally or recklessly causes another to suffer severe emotional distress. Elements: 1. ∆’s state of mind (i.e., intent) 2. Nature of conduct  ∆’s conduct is outrageous 3. Causal connection between ∆’s actions and π’s emotional distress  ∆ acts purposely or recklessly, causing the victim emotional distress so severe that it could be expected to adversely affect mental health  Consider degree of emotional distress Outrage (public officials) Public officials and figures may not recover damages for IIED due to publication of a parody or satire without showing that the publication contained a false statement of fact made with actual malice. DEFENSES for Intentional Torts CONSENT  CONSENT  Consent is a defense to intentional torts  Capacity to Consent  Consent may be revoked  Remember to factor in scope of consent  Types of Consent:  Express  Implied Express Consent  Consent is directly and clearly given with explicit words.  Often in writing!  Cases:  Grabowski v. Quigley  Brzoska v. Olson Implied Consent  Agreement given by a person’s action (or inaction) or can be inferred from circumstances by a reasonable person.  The person who gives consent can revoke consent anytime and should have the capacity to make valid consent.  The actor who gets the consent is bound by the consent and cannot exceed its scope.   Affirmative defense occurs when ∆ introduces evidence, which, if found to be credible, will negate liability, even if it is proven that ∆ committed alleged acts.  The party raising the affirmative defense has the burden of proof on establishing that it applies.  Raising an affirmative defense does not prevent Affirmati a party from also raising other defenses.  Examples of Affirmative Defenses for Intentional ve Torts: Defenses  Self-Defense  Defense of Property/Others  Necessity  Private  Public SELF- DEFENSE Self-Defense  Use of force to protect oneself from an attempted injury by another.  If justified, self-defense is a defense to intentional torts.  DEFENSE OF PROPERTY   Refers to an affirmative defense to liability asserting that individual used force to protect their property. Defens  Generally, one may use e of reasonable force to prevent Proper the commission of a tort against their property. ty  Case: Katko v. Briney PRIVATE NECESSITY Private Necessity  Private necessity is a defense that can be used against charges of trespass & conversion where a ∆ interferes with a π's property in an emergency to protect an interest of his own.  Private necessity is not an absolute defense to liability for trespass  Defense applicable to:  Conversion  Trespass to chattel  Trespass to land Private Necessity  Even if ∆ is found not liable because of successful defense, ∆ may have to pay for damages  High or Low Transaction Costs  High:  Tornado – we might only have a few minutes to get away  Successful affirmative defense  Low:  Hurricane – we know days in advance that this is coming  Unsuccessful affirmative defense PUBLIC NECESSITY   Public necessity is a defense that can be used when a ∆ interferes with a π's property in an emergency to protect the community or society from a Public greater harm that would have Necessi occurred if the ∆ had not committed trespass ty  Public necessity (IF established) serves as an absolute defense, and a ∆ is not liable for any damages caused by his trespass.   Common fact patterns:  Fires Public  Quarantine Necessi  Spread of Disease ty  Natural Disasters  Battery Assault False Imprisonment Yes INTENTIONAL TORTS Trespass Conversion Intentional ? Outrage (IIED) Yes NEGLIGENCE Abnormally Dangerous No Duty of Care? Activities No STRICT LIABILITY Liability for Animals Respondeat Superior NEGLIGENCE Negligence  Generally:  Negligence is the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances.  Either a person’s actions or omissions of actions can be found negligent.  The omission of actions is considered negligent only when the person had a duty to act (e.g., a duty to help someone because of one’s own previous conduct).  If an act is intentional, it is not negligence.  If an act is particularly unreasonable, it may by default be found to be willfully/wantonly negligent. Negligence “Don’t Burn [the] Condo Down” Elements: 1. Duty of care  existence of a legal duty for ∆ to conform to a specific standard of conduct for protection of π against an unreasonable risk of injury 2. Breach of duty  ∆, by behaving negligently, breached that duty 3. Causation  Breach of duty by ∆ was the actual and proximate cause of the π’s injury 4. Injury/Damages  Injury to π’s person or property DUTY OF CARE Duty of Care, Generally  A general duty of care is imposed on all human activity.  When a person engages in an activity, they are under a legal duty to act as a reasonably prudent person under the same or similar circumstances.  It is presumed that a reasonably prudent person will take precautions against creating unreasonable risks of injury to other persons Reasonable Prudent Person Standard  Generally:  ∆’s conduct is measured against a reasonably prudent person under the same or similar circumstances.  reasonable person has the following characteristics, measured by an objective standard:  Same physical characteristics as ∆  Average mental ability  Same knowledge as average member of community United States v. Carroll Towing  Rule:  Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL = negligence liability.  Facts:  π owns barge company; barge carried flour for US  π hires Carroll who hires ∆ to tow barge things happen; barge sinks  No employees on the barge  Analysis:  Connors is contributorily negligent for its failure to take safety precautions  Burden of taking precautions for Connors was paying employee to remain on the barge during normal working hours  likelihood of a barge breaking free is high in instances of severe weather  Potential injury resulting from a barge breaking free is significant and may result in total loss of the barge  Thus, compared with the relatively high risk of injury multiplied by the gravity of the injury, the burden on Connors to take precautions is relatively low. Learned Hand Formula  Burden (B) < Probability (P) x Loss (L)  B: burden or cost of the precaution that the π claims the ∆ should have used  P: probability (of specific/general harm) or accident occurring without precaution  L: loss (or harm) resulting from accident if it occurs  In plain English:  If the cost of prevention is low, and the chance of a serious injury occurring is high, then we think it’s reasonable that you take those precautions. Social Utility  We’re okay with some risk –  context matters!  The more useful something is to society, the more willingly we will accept the risks involved.  Courts care about safety, but we’re okay with some amount of risk because it is important for society.   CHILDREN  CUSTOM  INDUSTRY STANDARD SPECIA  PROFESSIONAL L  MEDICAL MALPRACTICE DUTIE  LEGAL MALPRACTICE S Children  Generally:  Child is held to measure of care that other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances  Adult Activity:  If minor is operating an car, airplane, or powerboat, then the minor is held to the same standard of care as an adult. Custom (Industry Standards)  Custom may be evidence of breach but does not necessarily equal breach  Just because everyone else is doing something does not mean it is (or is not!) reasonable.  BUT, it can give you a good starting point for your analysis  Professional Standard(s) of Care  Professional negligence is also called malpractice.  It occurs when a professional breaches a duty of care to a client.  Common types:  Medical Malpractice  Legal Malpractice  You still need to establish elements of negligence  Medical Malpractice  Duty of a professional to a client is generally defined as the duty to follow generally accepted professional standards.  Medical malpractice refers to a legal claim that arises when healthcare professional fails to adhere to the standard practices of their profession, resulting in harm to a patient.  May occur due to negligence like mistakes in diagnosis, treatment, aftercare, or overall health management. Medical Malpractice  Generally:  physician is expected to perform under the standard of average physician in the field, not the average physician in the geographical area.  Exception:  Locality Rule  Locality rule refers to a principle that in professional-malpractice suit, the standard of care to be applied to the professional's conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community Legal Malpractice Legal malpractice means that lawyer breached their duty of care to the client and the client was harmed as a result. Generally:  The standard of care generally is set by reference to the customary behavior of professionals in the relevant community   Duty Arising from Affirmative Acts  Duty Arising from Undertakings  Special Relationships  Duty to Rescue/Assist Others  Duties to Protect Others from 3rd Parties Other  Public Duty Doctrine  Duties of Possessor of Land Duties  Duty Owed to Trespasser  Duty Owed to Invitee  Duty Owed to Licensee  NIED Duties Arising from Affirmative Acts, Generally  Law generally imposes duties of care when people engage in affirmative acts—the type that can create risks.  There is no legal duty imposed on a person to affirmatively act for the benefit of others.  This general rule is subject to a few exceptions:  Assumption/Undertakings by acting  Misfeasance  Nonfeasance Duties Arising from Affirmative Acts  Good Samaritan Statutes  Statutes exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence.  Liability still exists for gross negligence  ∆’s conduct (negligent or innocent) that places π in a position of peril is under a duty to use reasonable care to aid or assist π.  ∆ with a special relationship to the π may be liable for failure to act if the π is in peril  Ex: parent-child, siblings, etc.  Misfeasance & Nonfeasance MISFEASANCE (action) NONFEASANCE  Improper performance of a lawful act, (inaction)  Omission to perform a resulting in harm or injury to another person required duty/failure to act  Misfeasance exists when ∆ is responsible when a duty to act existed. for making π’s position worse  i.e., ∆ has created the risk  Think: not doing something  Misfeasance typically occurs when ∆ which you should do undertakes a duty but fails to carry it out  Example: with proper care.  The act itself may be lawful, but  a landowner failed to negligence of act leads to harmful warn invitees of concealed consequences. and dangerous conditions on  Example: their property and an invitee  a doctor prescribes wrong meds to a patient, was injured resulting in harm  doctor's misfeasance can be grounds for a medical malpractice claim Duties Arising from Undertakings  ∆ who gratuitously acts for the benefit of another (π), although under no duty to do so, is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance  Rescue Efforts:  diligent rescue effort that’s ineffectual because adequate equipment, preparation, or personnel unavailable  not liable Duties to Protect Others from Third Parties  Defendant’s duty to protect plaintiff from harm inflicted by a third party  Duty sometimes based on relationship between defendant and party causing harm  Not relationship between defendant and plaintiff! Tarasoff v. Regents of the University of California  Rule:  When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger.  Facts:  Patient + Tatiana romantically linked  Tatiana ghosts patient;  Patient talks to his therapist  confesses intent to kill Tatiana Decedent = Tatiana  Therapist diagnoses patient; involuntary detainment  π = Tatiana’s parents released Psychiatric patient = murderer  No one tells/warns Tatiana or parents. Patient kills Tatiana ∆s : Regents of  Analysis: University of California  therapist has duty to take reasonable precautions given the Therapist circumstances to warn the potential victim of danger (university hospital  Here, therapist didn’t fail to predict patient’s danger to victim employee)  they predicted, and then negligently failed to warn Campus police Tarasoff Notes:  Public policy favoring protection of confidential character of patient-doctor communications must yield to the extent to which disclosure is essential to avert danger to others.  “The protective privilege ends where the public peril begins” Public Duty Doctrine The duty that public officials (like police officers) owe are to the population at large, not individuals unless individual can demonstrate existence of a special relationships with the defendant Duties of Possessor of Land to Others, Generally  Duty owed by an owner/occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the π regarding the property.  Terms for various types of π on property:  Trespasser  Licensee  Invitee  Note:  Licensees and Invitees are often grouped together  What is a licensee?  A licensee is one who enters on the land with the landowner’s permission, express or implied, for their own purpose or business rather than for the landowner’s benefit.  Note:  Social guests are licensees  Performance of minor services for the host does not make the guest an invitee.  Duty Owed to Licensee  Owner/occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover  No Duty to Inspect  Owner has no duty to a licensee to inspect for defects nor to repair known defects  Duty of Care for Active Operations  Owner has a duty to exercise reasonable care in the conduct of “active operations” for the protection of the licensee whom he knows to be on the property  What is an invitee? Invitee—a person who enters onto the premises in response to an express or implied invitation of the landowner.  Two types of invitees:  Invitees who enter as members of the public for a purpose for which the land is held open to the public  Think: museums, airports, etc.  Invitees who enter for a purpose connected with the business or other interests of the landowner or occupier  Think: store customers and persons accompanying them, employees, persons making deliveries, etc. Duty Owed to Invitee  The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping property reasonably safe for the benefit of the invitee.  This general duty includes the duty to warn of or make safe nonobvious, dangerous conditions known to the landowner, using ordinary care in active operations on the property, and a duty to make reasonable inspections to discover dangerous conditions and make them safe. Duty Owed to Invitee  Notes:  A warning is sufficient  requirement to “make safe” dangerous conditions usually satisfied with a reasonable warning  Obviousness of Danger  A duty to warn usually does not exist if dangerous condition is so obvious that invitee should reasonably have been aware of it  Duty owed to invitee is essentially same duties owed to licensee + duty to make reasonable inspections to discover dangerous conditions and make them safe  What is a trespasser?  Trespasser is one who comes onto the land without permission or privilege  Different types of trespassers:  Undiscovered  Discovered/Anticipated  Age of trespassers  Children  Attractive Nuisance Doctrine Duty Owed to Trespasser  Undiscovered:  Landowner owes no duty to an undiscovered trespasser.  Discovered/Anticipated:  under a duty to exercise ordinary care to warn the trespasser of, or make safe, artificial conditions known to landowner involving a risk of death or serious bodily harm and that the trespasser is unlikely to discover.  There is no duty owed for natural conditions and/or less dangerous artificial conditions.  Children  Attractive Nuisance Doctrine  Landowner has duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on property Negligent Infliction of Emotional Distress (NIED) A duty to avoid negligent infliction of emotional distress may be breached when the ∆ creates a foreseeable risk of physical injury to the π. Two usual requirements: 1. π must be within the “zone of danger”; and 2. π must suffer physical symptoms from the distress. Categories: 1. π is a direct victim of ∆’s negligence  Near miss cases  ∆ acts negligently toward the π, narrowly avoids causing physical harm, yet puts the π in great fear; or cases where the ∆ commits negligent act that involves no physical contact, like telling the π bad, but mistaken news 2. π is not a direct victim of negligence but a bystander seeing harm negligently inflicted upon another. Zone of Danger & Physical Symptoms Zone of Danger  Doctrine that limits the liability of persons accused of NIED  If the zone of danger rule applies, π suing for NIED may recover damages if they were  (1) "placed in immediate risk of physical harm" by the ∆'s negligence and  (2) frightened by the risk of harm Physical Symptoms  Most courts usually require that the ∆’s conduct caused the π emotional distress that manifests itself in physical symptoms Bystander Issue  Bystander outside the “zone of danger” of physical injury who sees the ∆ negligently injuring another could not recover damages for her own distress.  Common law  A majority of states now allow recovery in these cases if  (1) the π and the person injured by the ∆ are closely related,  (2) the π was present at the scene of the injury, and  (3) the π personally observed or perceived the event. BREACH OF DUTY Breach of Duty  Where the ∆’s conduct falls short of that level required by the applicable standard of care owed to the π, then ∆ has breached her duty.  Whether the duty of care is breached in an individual case is a question for the trier of fact.  Evidence may be offered to establish the standard by which ∆’s conduct is to be measured.  Think: professional standard, custom, etc. Negligence Per Se  Negligence per se = Negligence itself  In a tort case, a ∆ who violates a statute or regulation without an excuse is automatically considered to have breached their duty of care and is therefore negligent as a matter of law.  As a result, the only thing that must be proven is whether the violation was the actual and proximate cause of the π’s injury. Negligence Per Se – When to Use it  An actor is negligence per se if they violate statute and  1. π is within the protected class  π must show they were intended to be protected by the statute  2. Legislative intent was particular harm to be avoided  π must show statute was designed to prevent type of harm that π suffered Negligence Per Se – Effect  Most courts still adhere to the rule that violation of a statute is “negligence per se.”  π will establish conclusive presumption of duty of care and breach of duty  π must establish causation and damages to complete the prima facie case for negligence  Minority:  Hold either  (1) a rebuttable presumption as to duty of care and breach of duty arises, or  (2) the statutory violation is only prima facie evidence of negligence. Res Ipsa Loquitur, Generally  Res Ipsa Loquitur = the thing speaks for itself  Look for situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed.  If the facts strongly indicate that π’s injuries resulted from ∆’s negligence, the trier of fact may be permitted to infer ∆’s liability  Res ipsa loquitur, when established, is a shortcut to proving breach element of negligence   Allows πs to meet their burden of proof with circumstantial evidence.  Negligence inferred from the thing itself Res Ipsa happening Loquitur,  Typically used when there’s no direct evidence of the ∆’s behavior in Continue connection with the event that caused d the injury Res Ipsa Loquitur π must prove (elements): 1. injury to the π would not ordinarily occur in the absence of negligence 2. ∆ was in control of the instrumentality, which led to the injury to the π 3. π did not contribute to the cause  Remember, not always required!  ∆ can try to show that it is just as likely someone else caused the harm to the π, and/or  ∆ can try to introduce direct evidence that they were not negligent. CAUSATION Causation  Once π establishes ∆ acted negligently, π must show ∆’s negligence was cause of π’s injuries  Two considerations: 1. Cause in Fact  Cause in fact = actual cause = but-for cause 2. Proximate Cause   Typically, π has to demonstrate that injuries would not have occurred if ∆ had used due care.  Note:  An act or omission to act is the cause in fact of an injury when the injury Cause in would not have occurred but for the Fact act.  Traditional but-for causation is strict  Ask:  Would the P’s injury have occurred but for the D’s breach of a standard of care owed?  Alternative Liability (Joint & Several Liability)  Joint and several (or alternative) liability means each ∆ is liable for all of the π’s damages.  Scenario: 2 or more ∆s have been negligent, but uncertainty exists which ∆ caused π’s injury  π proves that one of the ∆s has caused harm but cannot prove which one caused it  results in a shift of the burden of proof to each ∆.  Each ∆ must show that their negligence is not cause of π’s injuries  Market Share Liability  Market share liability is a doctrine that apportions liability against a set of ∆s according to their respective market shares of sales of a harmful product during the period that the harm occurred.  This is an application of alternative liability to encompass industry groups.  Prof. Lauriat:  market share liability is rare and will only be applied in a narrow set of circumstances   General rule of proximate cause is that the ∆ is liable for all harmful results that are the normal incidents of and within the increased risk caused by their acts  Foreseeability of danger is necessary to render conduct negligent Proximat  If ∆s act of negligence creates a greater e Cause risk of a particular harmful result, and that result does occur, ∆ generally is liable  Proximate cause is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts.   Tortfeasor (∆) takes victim (π) as they find π.  The fact that the extent, severity, or scale of the harm was not foreseeable does not relieve ∆ of liability  If ∆s negligence causes an aggravation Eggshell of πs existing physical or mental illness, Skull ∆ is liable for the damages caused by the aggravation. Rule  Note:  We don’t have to predict how victim could have been impacted, but we have to be able imagine type of harm Foreseeability  Foreseeability asks whether a person could or should reasonably have foreseen the harms that resulted from their actions.  If resulting harms were not foreseeable, a ∆ might prove that they were not liable.  Note: even if a ∆ could not have foreseen the scale of the resulting harm, they might be liable if a harm of that type was foreseeable.  Foreseeable harm?  ∆  liable  Unforeseeable harm?  ∆  depends   An event that occurs after a party's improper or dangerous action and before the damage that could otherwise have been caused by the dangerous act, breaking the chain of causation between the original act and the harm to the Interveni injured person. ng  Common Foreseeable Intervening Causes: Causes  Subsequent Medical Malpractice  Negligence of Rescuers  Subsequent accidents/diseases   Intervening forces that produce unforeseeable results will be deemed to be unforeseeable and superseding.  (i.e., results that were not within the increased risk created by ∆s negligence)  A superseding force is one that serves to Supersedin break the causal connection between ∆s initial negligent act and the g Cause ultimate injury, and itself becomes a direct, immediate cause of the injury.  Then ∆ will be relieved of liability for the consequences of their antecedent conduct.  Grady Categorization of Intervening Conduct Type: Description: L/NL: No Intervening Tort ∆ was negligent—no subsequent intervening tortious L act between negligent act and harm to π Dependent ∆’s negligence made π vulnerable to someone else’s L Compliance Error ordinary negligence or emergency response Encouraged Free ∆’s negligence created an unusually tempting L Radicals opportunity for 3rd parties to do harm No Corrective ∆ was negligent, but a 3rd party willfully failed to take NL Precautions precautions to prevent resulting harm Independent ∆ was negligent, but a 3rd party committed an NL Intervening Tort intervening wrong independent of the ∆’s negligence Defenses Defenses to Negligence  Three main defenses available for negligence: 1. Contributory negligence 2. Comparative negligence 3. Assumption of risk  Express  Implied  Contributory/Comparative depends on jurisdiction CONTRIBUTO RY NEGLIGENCE CONTRIBUTORY NEGLIGENCE Contributory negligence is a common law rule which bars plaintiffs from recovering for the negligence of others if π negligent in causing the harm  Contributory negligence replaced in many jurisdictions with comparative negligence.  Exception:  Last Clear Chance Doctrine Last Clear Chance Doctrine  Applicable when both π and ∆ are responsible for an accident that resulted in harm.  The doctrine considers which party had the last opportunity to avoid the accident that caused the harm.  Exception to contributory negligence  Outcomes:  negligent π may recover damages if they can show that the ∆ had the last clear chance to avoid the accident.  ∆ may also use the doctrine as a defense by showing that the π had the last clear chance to avoid the accident. COMPARATI VE NEGLIGENCE COMPARATIVE NEGLIGENCE Principle used by the court to reduce the amount of damages that a π can recover in a negligence-based claim according to the degree of negligence each party contributed to the incident ASSUMPTIO N OF RISK Assumption of Risk  Generally, a π’s inability to recover for the tortious actions of a negligent party in scenarios where the π voluntarily accepted the risk of those actions.  Types:  Express  Implied  Primary  Secondary  Assumption of Risk is not a defense to intentional torts. Express Assumption of Risk  Risk may be assumed by express agreement  A π who contracts or expressly agrees to accept a risk of harm arising from the ∆'s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy. (Restatement § 496B)  Look out for:  Hidden exculpatory clauses  Exculpatory clauses with broad coverage violating public policy  Tunkl Test  Express Assumption of Risk  Exculpatory clauses in a contract are closely scrutinized, but are generally enforceable  Exculpatory clause:  part of a contract that prevents one party from holding the other party liable for damages related to the contract.  Examples:  Amusement park tickets  Plane tickets Tunkl Test  If an agreement does not represent a free choice on the part of the π, or π is forced to accept the clause by the necessities of situation  courts refuse to enforce agreements as contrary to public policy.  Rule is applicable to:  Employer-employee  One party is charged with duty of public service Primary Assumption of Risk  In primary assumption of risk, ∆ had no duty of care to the π, and, as such, they cannot be found negligent.  There is no prima facie case for liability  Complete “defense” to negligence claim  Example:  participating in sporting events like football Secondary Assumption of Risk  occurs when ∆ does have a duty of due care to π and that duty was breached  ∆ argues that π recognized whatever danger resulted from ∆s alleged negligence and voluntarily chose to encounter it  Here, secondary assumption of risk will be evaluated as if it were comparative negligence (now)  Historically  evaluated like contributory negligence LIMITATIONS PRIVITY LIMITATION Limitations to Duty Based on Lack of Privity  Privity of Contract  Privity is established when there is a substantive legal relationship between two or more parties  Usually between parties in contractual agreement  How far does the duty extend (for Torts)?  The duty of due care is owed to foreseeable plaintiff— user, consumer, or bystander  Example:  a pedestrian injured when struck by an automobile with defective brakes Considerations for privity limitation fact patterns  Look for an identifiable plaintiff  Large pool of plaintiffs  courts are less likely to allow a Glanzer exception to apply  Process:  Start with ”no duty of care”  If identifiable plaintiff  maybe court creates an exception  If multiple plaintiffs  courts less likely to extend duty of care PURE ECONOMIC LOSS Pure Economic Loss Doctrine  A third party for whose economic benefit a legal or business transaction is made is owed a duty of care if the ∆ could reasonably foresee harm to that party if the transaction is done negligently.  Note that this is an exception to the general rule that says:  One who suffers only economic loss because of another’s negligence cannot recover damages in a tort action  Things to consider:  Special relationships between π and ∆  Professional duty of care to π  Does ∆ owe a duty of care to the person complaining of economic loss?  No  No liability  Yes  go through other other elements of negligence  Was economic loss foreseeable (i.e., proximate cause) of loss?  No  No liability  Yes  go though other elements of negligence  Foreseeability:  A reasonable person in a given situation should know that specific harm might occur as a result of their actions.  Battery Assault False Imprisonment Yes INTENTIONAL TORTS Trespass Conversion Intentional ? Outrage (IIED) Yes NEGLIGENCE Abnormally Dangerous No Duty of Care? Activities No STRICT LIABILITY Liability for Animals Respondeat Superior STRICT LIABILITY Strict Liability  To establish a prima facie case for strict liability, the following elements must be shown:  1. nature of the ∆’s activity imposes an absolute duty to make safe;  2. The dangerous aspect of the activity is the actual and proximate cause of the π’s injury; and  3. The π suffered damage to person or property.  Categories:  Liability for Animals  Abnormally Dangerous Activity  Respondeat Superior Strict Liability  Strict liability does not have a scienter requirement.  Scienter  refers to a culpable state of mind (mens rea  criminal law)  scienter is a ∆'s knowledge that an act or conduct is wrongful and intent to act despite this knowledge  Remember—still need following elements for strict liability:  Causation  Damages Strict Liability  ∆’s act does not need to be intentional, negligent, or knowing if π’s injury results from circumstances covered under strict liability  Scienter not required  Causation required  Things to consider:  Public policy implications  Commonality of activity  Remember to think of negligence too! LIABILITY FOR ANIMALS Liability for Animals  Owners of ferocious beasts are strictly liable for damage their animals cause to others.  Owner (∆) may be liable even if they took measures to prevent harm from occurring.  Ferae naturae = abnormally dangerous animal  Notes:  Regular animals:  Dogs, cats, common pets  Ferocious beasts:  Tigers, lions, etc. Knowledge for Domesticated Animals (One Bite Rule)  If an animal is considered tame, that decision does not necessarily relieve owner of liability for damage the animal causes.  Focus of Inquiry:  Extent of owner’s knowledge that animal had propensity for that type of harm.  If owner does have such knowledge  liable  Notes:  Some states have applicable statutes ABNORMALLY DANGEROUS ACTIVITIES Abnormally Dangerous Activities  An activity may be abnormally dangerous if it involves a substantial risk of serious harm to person or property even when reasonable care is exercised Two-part test commonly used: 1. Activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and 2. Activity that is not of common usage  A person who is found to have carried on an abnormally dangerous activity will be subject to strict liability for resulting physical harm   Physical harm:  Generally, includes both bodily harm and property damage  Risk of physical harm may be considered high if: FORESEEA  Probability of harm is high, but severity BLE RISK of harm is ordinary OF  Probability of physical harm is low, but PHYSICAL severity of harm is high. HARM  Notes:  ∆ is liable to foreseeable πs  Common carriers usually cannot refuse cargo  usually not held at fault under strict liability RESPONDEAT SUPERIOR Respondeat Superior  Doctrine of Repondeat Superior = “let the master answer”  Generally, holds the employer strictly liable for torts committed by their employees in the course of their work.  Think about tortious acts by employee occurring within the scope of the employment relationship.  Respondeat Superior situations:  Frolic and detour  Intentional Torts  Liability for own Negligence Respondeat Superior  Respondeat Superior is a type of vicarious liability  Vicarious liability:  Liability for one party based on wrongs of another  One person commits a tort against 3rd party, and another person/entity is liable to the 3rd party for the act.  Other types of vicarious liability situations:  Independent contractor situations Frolic and Detour  The master is only liable where the servant is acting in the course of his employment.  servant will not be liable when:  going out of the way, against master’s implied commands, while on master’s business  i.e., frolic and detour  servant liable when:  Going on a frolic of his own, without being at all on his master’s business Frolic and Detour  When employee deviates from employer’s business think about:  Is deviation minor in time and geographic area?  Yes  the employee will probably be considered to be acting within scope of employment  No the employee will probably be considered to be on a “frolic” of their own  employer would not be liable  Note:  Think of the scope of employment  Determining if deviation is minor is for factfinder PRODUCTS LIABILITY Products Liability  Products Liability used to describe the liability of a supplier of a product to one injured by the product.  Products liability cases requires that the plaintiff show an existence of defects in defendant’s product when the product left the defendant’s control  Types:  Manufacturing Defects  Design Defects  Failure to Warn Products Liability  Prima Facie Case (for the commercial seller of the defective product)  ∆ sells a product that the plaintiff uses  ∆ is the commercial seller of such a product  When ∆ sold the item, the item was defective  The defect was an actual and proximate cause of the πs injury  The π suffers an injury MANUFACTURIN G DEFECTS Manufacturing Defects  Liability even if quality control efforts of the manufacturer are reasonable  Strict liability without fault so that manufacturers will invest in product safety, shares costs across consumer base through purchase price, and reduces transaction costs Manufacturing Defects  This kind of defect occurs when a product departs from its intended design and is more dangerous than consumers expect the product to be  Manufacturing defects only occur to some of the products because of some flaw during manufacture.  Proof the defect actually caused the damages claimed  π must suffers damages to recover from manufacturing defects  Food:  natural to the food  reasonably expected to be in food  food cannot be defective DESIGN DEFECTS Design Defects  A design defect means that the product was manufactured correctly, but the defect is inherent in the design of the product itself, which makes the product dangerous to consumers  Plaintiff establishes a design defect exists when they prove there is a feasible alternative design that would  be safer than the original  as economically feasible as the original, and  as practical as the original design, while retaining the primary purpose behind the original Design Defect Balancing Test (Dawson v. Chrysler)  Factors for risk/utility analysis: 1. Usefulness & desirability of the product, its utility to the user, and to the public as a whole 2. Safety aspects of the product, the likelihood that it will cause injury, and the probable seriousness of the injury 3. Availability of a substitute product which would meet the same need and not be as unsafe 4. Manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility 5. User’s ability to avoid danger by the exercise of care in the use of the product 6. User’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions 7. Feasibility, on the part of the manufacturer, of spreading the loss by setting FAILURE TO WARN Failure to Warn  Inadequate warnings and instructions are information defects.  A product must have clear and complete warnings of any dangers that may not be apparent to users.  For prescription drugs and medical devices, warnings to the prescribing physician usually will suffice  “learned intermediary” rule  Heeding presumption = π would have obeyed suitable warnings NUISANCE Nuisance  A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities  Types:  Private  Public  Remember:  Trespass = protects landowners right to exclude others from property  Nuisance = protects landowners right to use and enjoyment of property Private Nuisance  A private nuisance is when the plaintiff's use and enjoyment of her land is interfered with substantially and unreasonably through the actions of another  Interference must:  1) Be “substantial”  2) Cause unreasonable “discomfort or annoyance” Substantial Interference  To be substantial the court will consider various factors, including:  The nature and extent of the interference  Frequency and duration of the interference  Character of the neighborhood  Land usage  Geographical location  The extent to which others are engaging in similar conduct in the area  Motives in causing the interference  Means of stopping or lessening the interference  Public and community interests Unreasonable Discomfort/Annoyance  “discomfort or annoyance” must be objectively unreasonable;  the harm from the interference is severe and greater than the other should be required to bear without compensation.  The effects of the conduct are the focus rather than the conduct itself.  Interference must be “such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits.” Private Nuisance Examples  Vibration  Pollution of a stream o soil  Smoke  Foul odors  Light pollution  Loud noise Public Nuisance Restatement (Second) of Torts, § 821B. Public Nuisance  (1) A public nuisance is an unreasonable interference with a right common to the general public.  (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:  (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or  (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or  (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. Public Nuisance (Prof. Lauriat)  Examples:  Pollution  Unsafe storage of hazardous materials  Major health hazards  Criminal activity  Sickening smells  Bright lights  Loud noises  Abandoned vehicles  Accumulated rubbish  High weeds DEFAMATIO N Defamation  Defamation is a statement that injures a third party's reputation.  Includes both libel (written statements) and slander (spoken statements).  State common law and statutory law governs defamation actions, and each state varies in their standards for defamation and potential damages. Defamation  To prove prima facie defamation, a plaintiff must show four things:  1) false statement purporting to be fact;  2) publication or communication of that statement to a third person;  3) fault amounting to at least negligence; and  4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement. DAMAGE S Damages  Damages are the remedy that a party requests the court award to try to make the injured party whole.  Typically, damage awards are in the form of monetary compensation to the harmed party.  The sum of money included in the damages may be:  Compensatory damages calculated based on harmed party’s actual losses, or  Punitive damages intended to punish the wrongdoer  Compensatory Intended to replace what π has lost  biggest category Punitive Punishment/intended to deter ∆ & other potential tortfeasors from committing misconduct in question  rare in Torts Nominal awarded to commemorate the plaintiff’s vindication in Types of court/establish π’s rights were invaded Damages Statutory E.g., wrongful death action Liquidated Contracts  not covered in Torts Specific Performance Contracts  not covered in Torts Compensatory Damages  Injured party can receive compensatory damages to compensate for all types of losses.  Wronged πs may receive compensation for damage to property or for damages incurred in personal injury cases  Types:  Lost Wages/Earnings (economic)  Pain and Suffering (non-economic)  Medical Expenses (economic) Lost Wages/Earnings  A type of compensatory damage.  Lost Wages/Earnings are economic damages.  Loss of Consortium = loss of support  Generally:  Economic damages are “discounted to present value”  Lump sum of money received today can be invested and, presumably, earn interest in the years before it is needed so lump sum can be smaller than the sum of periodic payments  Prejudgment Interest (modified) Interest that a creditor, usually a π in the case, is entitled to collect, derived from the amount of a judgment, which compensates the creditor for an injury which occurred before the judgment. .O’Shea v. Riverway Towing Co.  Calculating lost future wages with inflation:  Two options: 1. Calculate probable future wage discounting interest rate based on unrealistic assumption of zero inflation 2. Calculate probable future wage with an estimate of expected inflation and a higher discount rate for interest, also accounting for expected inflation Pain and Suffering  Pain and suffering refers to the physical discomfort and emotional distress that are compensable as non-economic damages.  refers to the pain, discomfort, anguish, inconvenience, and emotional trauma that accompanies an injury.  An effort to compensate the plaintiff for:  the physical agony of the injury  the pain associated with any medical treatments  emotional consequences that flow from the injury Humiliation Recovery Restatement (Second) of Torts  § 905. Compensatory Damages for Pecuniary Harm  d. Humiliation. One who has a cause of action for a tort may be entitled to recover as an element of damages for that form of mental distress known as humiliation, that is, a feeling of degradation or inferiority or a feeling that other people will regard him with aversion or dislike. This state of mind may result from a physical harm, an imprisonment, a defamatory statement, the disruption of the marital relation, or even the deliberate trespass to land or destruction or dispossession of chattels. That’s all for Torts! Good luck!