TORTS
I. INTENTIONAL TORTS
A. PRIMA FACIE CASE
To establish a prima facie case for intentional tort liability, it is generally necessary that plaintiff prove the following:- Act by defendant;
- Intent; and
- Causation.
1. Act by Defendant
The “act” requirement for intentional tort liability refers to a volitional movement on defendant’s part. EXAMPLES- Chauncey tripped and was falling. To break the fall, Chauncey stretched out his hand, which struck Darby. Even though the movement was reflexive, it nonetheless was one dictated by the mind, and hence will be characterized as volitional.
- Lulu suffered an epileptic attack. During the course of it, she struck Darby. This is not a volitional act.
- Chauncey pushed Lulu into Darby. Chauncey has committed a volitional act; Lulu has not.
2. Intent
The intent of the actor that is relevant for purposes of intentional torts is the intent to bring about the consequences that are the basis of the tort. An actor “intends” the consequences of his conduct if his purpose in acting is to bring about these consequences or if he knows with substantial certainty that these consequences will result. EXAMPLED, five years old, pulls a chair out from under P as she is sitting down. Even if D did not desire that she hit the ground, if he knew with substantial certainty that she was trying to sit and would hit the ground, he will have the intent necessary for battery. [Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955)] a. Actor Need Not Intend InjuryA person may be liable even for an unintended injury if he intended to bring about such “basis of the tort” consequences. EXAMPLE A intends to push B and does so. B falls and breaks his arm. This conduct gives rise to a cause of action for battery. The “consequences” that are the basis of this tort are harmful or offensive contact to the plaintiff’s person. In this case, the actor intended to bring about harmful or offensive contact to B. Hence, he will be liable even though it was not intended that B break his arm. b. Transferred Intent1) General RuleThe transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead (1) commits a different tort against that person, (2) commits the same tort as intended but against a different person, or (3) commits a different tort against a different person. In such cases, the intent to commit a tort against one person is transferred to the other tort or to the injured person for purposes of establishing a prima facie case. EXAMPLE A swings at B, intending only to frighten him. A’s blow lands on C. A’s intent to commit assault on B is transferred to C, and A’s act constitutes a battery on C. 2) Limitations on Use of Transferred IntentTransferred intent may be invoked only where the tort intended and the tort that results are both within the following list:- Assault;
- Battery;
- False imprisonment;
- Trespass to land; and
- Trespass to chattels.
3. Causation
The result giving rise to liability must have been legally caused by the defendant’s act or something set in motion thereby. The causation requirement will be satisfied where the conduct of defendant is a substantial factor in bringing about the injury. Note: Ordinarily, causation will not be at issue in intentional torts cases because it is usually obvious that the defendant’s conduct was a substantial factor in causing the harm.B. PRIMA FACIE CASE — INTENTIONAL TORTS TO THE PERSON
1. Battery
a. Prima Facie Case To establish a prima facie case for battery, the following elements must be proved:- An act by the defendant which brings about harmful or offensive contact to the plaintiff’s person;
- Intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s person; and
- Causation.
- Chauncey, intending to set a trap, dug a hole in the road upon which Lulu was going to walk. Lulu fell in. Causation exists.
- Horace struck a glass door so that the breaking glass cut Bowater. Causation exists.
2. Assault
a. Prima Facie Case To establish a prima facie case for assault, the following elements must be proved:- An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person;
- Intent on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiff’s person; and
- Causation.
- Jailer refused to release a prisoner at the end of his jail sentence. Jailer may be liable for false imprisonment.
- Plaintiff is imprisoned for failing to produce corporate records. Defendant has the records but is under no legal duty to produce them and refuses to do so. There is no false imprisonment.
6) Invalid Use of Legal Authority
The invalid use of legal authority amounts to false imprisonment if it results in a confinement of plaintiff.a) False Arrests
An action for false imprisonment does not lie for an arrest or a detention made by virtue of legal process duly issued by a court or official having jurisdiction to issue it. However, where an arrest by a police officer or private citizen for a criminal offense without a warrant is unlawful (i.e., not privileged), it may constitute false imprisonment.(1) When Arrests Are Privileged
(a) Felony Arrests Without Warrant
A felony arrest without a warrant by a police officer (or a private citizen acting at the officer’s direction) is valid if the officer has reasonable grounds to believe that a felony has been committed and that the person arrested has committed it. Such an arrest by a private person will be privileged only if a felony has in fact been committed and the private person has reasonable grounds for believing that the person arrested has committed it.(b) Misdemeanor Arrests Without Warrant
Both police officers and private citizens are privileged for misdemeanor arrests without a warrant if the misdemeanor was a breach of the peace and was committed in the presence of the arresting party. (Note that in most states, police officers have a broader statutory privilege of arrest for any misdemeanor committed in their presence.)(c) Arrests to Prevent a Crime Without a Warrant
Where a felony or breach of the peace is in the process of being, or reasonably appears about to be, committed, both police officers and private citizens are privileged to make an arrest.(2) Amount of Force Allowable
(a) Felony Arrest
For felony arrests, both police officers and private citizens may use that degree of force reasonably necessary to make the arrest; however, deadly force is permissible only when the suspect poses a threat of serious harm to the arresting party or others.(b) Misdemeanor Arrest
For misdemeanor arrests, both police officers and private citizens are privileged to use only that degree of force necessary to effect the arrest, but never deadly force.b) “Shoplifting” Detentions Are Privileged
What if a shopkeeper suspects someone of shoplifting and detains that individual to ascertain whether this is the case? He may be liable for false imprisonment. But if he does nothing and permits the suspect to simply leave the premises, the merchandise and all possibilities of proving theft will be lost. Hence, by statute in some states and case law in others, shopkeepers have been given a privilege to detain for investigation. For the privilege to apply, the following conditions must be satisfied:- There must be a reasonable belief as to the fact of theft;
- The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
- The detention must be only for a reasonable period of time and only for the purpose of making an investigation.
c. Insufficient Forms of Confinement or Restraint
As stated above, restraints or confinements produced by requiring the plaintiff to choose between injury to his person or property and his freedom of motion are generally actionable. However, a cause of action will not be sustained for all forms of restraint or confinement.1) Moral Pressure
A cause of action will not be sustained if a person remains in the area merely because he is responding to the exertion of moral pressure. 2) Future ThreatsSimilarly, a cause of action will not be sustained if a person remains in the area in response to future threats against person or property. d. No Need to ResistPlaintiff is not under any obligation to resist physical force that is being applied to confine him. Similarly, where there is a threat of force, he is not obligated to test the threat where the defendant has the apparent ability to carry it out. e. Time of ConfinementIt is immaterial, except as to the extent of damages, how short the time period of the confinement is. f. Awareness of ImprisonmentMost American cases hold that awareness of confinement is a necessary element of the tort. The Restatement provides an exception to this requirement where the person confined is actually injured by the confinement (e.g., an infant locked in a bank vault for several days). **g. What Is a Bounded Area?**For an area to be “bounded,” the plaintiff’s freedom of movement in all directions must be limited; e.g., merely blocking plaintiff’s access to a portion of a park does not constitute false imprisonment. The area will not be characterized as “bounded” if there is a reasonable means of escape of which plaintiff is aware. h. CausationPlaintiff’s confinement must have been legally caused by the defendant’s act or something set in motion thereby, either directly or indirectly. i. Transferred IntentThe doctrine of transferred intent applies to false imprisonment. j. No Requirement of DamagesIt is not necessary to prove actual damages to sustain a prima facie case for false imprisonment. Again, if defendant’s conduct was motivated by malice, plaintiff may also be entitled to punitive damages. k. False Imprisonment and Malicious Prosecution DistinguishedOne who participates in, procures, or instigates an unlawful arrest without proper authority may be liable for false arrest. Note that merely giving information to the police about the commission of a crime, leaving to the police the decision whether to make an arrest, does not constitute false imprisonment, as long as one stops short of instigating the arrest. Whether the defendant instigated the arrest or merely furnished information to the police is a question for the trier of fact. Where information only is given, there may be liability for malicious prosecution (see VII.E.1., infra), if not for false imprisonment. 4. Intentional Infliction of Emotional Distressa. Prima Facie CaseTo establish a prima facie case for intentional infliction of emotional distress, the following elements must be proved:- An act by defendant amounting to extreme and outrageous conduct;
- Intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct;
- Causation; and
- Damages—severe emotional distress.
- An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area;
- Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and
- Causation.
- Physical Barriers Defendant may falsely imprison plaintiff by confining him through the use of physical barriers.
- Physical Force False imprisonment will result where plaintiff is restrained by the use of physical force directed at him or a member of his immediate family. An action may also lie if the force is directed against plaintiff’s property.
- Sole Benefit of Bailor BailmentIf the bailment is for the sole benefit of the bailor (e.g., the bailor asks his neighbor (the bailee) to take in the bailor’s mail while he is on vacation), the bailee is liable only for gross negligence.
- Sole Benefit of Bailee BailmentIf the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously loans her lawnmower to the bailee), the bailee is liable even for slight negligence.
- Mutual Benefit BailmentsIf the bailment is for the mutual benefit of the bailor and bailee (typically a bailment for hire such as in the computer example above), the bailee must exercise ordinary due care.
- Modern TrendToday the trend is away from such classifications and toward a rule that considers whether the bailee exercised ordinary care under all the circumstances. These circumstances include, e.g., value of the goods, type of bailment, custom of a trade, etc.
- Sole Benefit of Bailee BailmentsIf the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously loans her lawnmower to the bailee), the bailor need only inform the bailee of known dangerous defects in the chattel. There is no duty with regard to unknown defects.
- Bailments for HireIf the bailment is for hire (e.g., the bailor loans her lawnmower to the bailee for a fee), the bailor owes a duty to inform the bailee of defects known to him, or of which he would have known by the exercise of reasonable diligence.
c. Standard of Care in Emergency Situations
The existence of an emergency, presenting little time for reflection, may be considered as among the circumstances under which the defendant acted; i.e., he must act as the reasonably prudent person would under the same emergency. The emergency may not be considered, however, if it is of the defendant’s own making.d. Standard of Care Owed by Owners and/or Occupiers of Land
In this section, duty problems are resolved by application of special rules that have been developed imposing duties on individuals because of their relationship to property. In some cases, the duty of the owner or occupier depends on whether the injury occurred on or off his premises; in others it depends on the legal status of the plaintiff with regard to the property, i.e., trespasser, licensee, or invitee.1) Duty of Possessor to Those Off the Premises
1. Natural Conditions The general rule is that a landowner owes no duty to protect one outside the premises from natural conditions on the land. EXAMPLE One is not liable for bugs that live in trees on one’s land but that “visit” the neighbors from time to time. Note: An exception exists for decaying trees next to sidewalks or streets in urban areas. 2. Artificial Conditions As a general rule, there is also no duty owing for artificial conditions. Two major exceptions exist, however. a. Unreasonably Dangerous Conditions A landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land. EXAMPLE While one would not be liable for natural collections of ice on the sidewalk, he might be liable for negligently permitting water to drain off his roof and form ice on the sidewalk. b. Duty to Protect Passersby A landowner also has a duty to take due precautions to protect persons passing by from dangerous conditions, e.g., by erecting a barricade to keep people from falling into an excavation at the edge of the property. 3. Conduct of Persons on Property An owner of land has a duty to exercise reasonable care with respect to his own activities on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to others outside the property. **b. How Much Force May Be Used?**The defender, assuming he is justified, may use as much force as he could have used in self-defense if the injury were threatened to him (see above). **4. Defense of Propertya. When Is Defense Available?**Generally, one may use reasonable force to prevent the commission of a tort against her property. 1) Request to Desist Usually RequiredA request to desist must precede the use of force, unless the circumstances make it clear that the request would be futile or dangerous. 2) Effect of MistakeReasonable mistake is allowed as to the property owner’s right to use force in defense of property where the mistake involves whether an intrusion has occurred or whether a request to desist is required. However, mistake is not allowed where the entrant has a privilege to enter the property that supersedes the defense of property right (see 4), below). In such a case the property owner is liable for mistakenly using force against a privileged entrant unless the entrant himself intentionally or negligently caused the mistake (e.g., by refusing to tell the property owner the reason for the intrusion). 3) Limited to Preventing Commission of TortDefense of property is limited to preventing the commission of a tort against the defendant’s property. Thus, once the defendant has been permanently dispossessed of the property and the commission of the tort is complete, she may not use force to recapture it. However, where one is in “hot pursuit” of someone who wrongfully dispossessed her of her property, the defense still operates because the other is viewed as still in the process of committing the tort against the property. 4) Superseded by Other PrivilegesWhenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc. (discussed below), that privilege supersedes the privilege of the land possessor to defend her property. **b. How Much Force May Be Used?**One may use reasonable force to defend property. However, she may not use force that will cause death or serious bodily harm. (Of course, if the invasion of property also entails a serious threat of bodily harm to the owner, she may then invoke the defense of self-defense and use deadly force.) Further, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser. 5. Reentry onto Landa. Common Law PrivilegeIn former years, it was held that a person who had been tortiously dispossessed from her land (by fraud or force) could use reasonable force to regain possession if she acted promptly upon discovering the dispossession. (Note that this did not apply to a tenant merely overstaying her lease.) b. Privilege Abolished in Most StatesMost states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession. Hence, the owner who uses force to retake possession is liable for whatever injury she inflicts. **6. Recapture of Chattelsa. When Is Defense Available?**The basic rule is the same as that for land: where another’s possession began lawfully (e.g., a conditional sale), one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully, e.g., by theft. 1) Timely Demand RequiredA demand to return the chattel must precede the use of force, unless the circumstances make it clear that the demand would be futile or dangerous. 2) Recovery Only from WrongdoerThe recapture may only be from a tortfeasor or some third person who knows or should know that the chattels were tortiously obtained. If the chattels have come to rest in the hands of an innocent party, this will cut off the actor’s privilege to use force to effect recapture. **b. How Much Force May Be Used?**Reasonable force, not including force sufficient to cause death or serious bodily harm, may be used to recapture chattels. 2) Consent Implied by LawIn some situations, consent may be implied by law where action is necessary to save a person’s life or some other important interest in person or property. Thus, for example, consent will be implied in an emergency situation where the plaintiff is incapable of consenting and a reasonable person would conclude that some contact is necessary to prevent death or serious bodily harm, e.g., a surgical operation where a person is unconscious after an automobile accident. c. Capacity RequiredIncompetents, drunken persons, and very young children are deemed incapable of consent to tortious conduct. Consent of parent or guardian is necessary to constitute a defense in such a case. d. Criminal ActsFor purposes of tort liability, the majority view is that a person cannot consent to a criminal act. A minority and the Restatement of Torts take the contrary position and view consent to a criminal act as a valid defense in a civil action for an intentional tort. 1) Modern TrendThe modern tendency has been to differentiate between illegal acts that are breaches of the peace, e.g., a street fight (consent ineffective), and those that are not a breach of the peace, e.g., an act of prostitution (consent effective). 2) Consent Invalid Where Law Seeks to Protect Members of Victim’s ClassWhere the act is made criminal to protect a limited class against its own lack of judgment (e.g., statutory rape), consent is not a good defense in an action by a member of that class. e. Exceeding Consent GivenIf the defendant exceeds the scope of consent by committing a more intrusive invasion or by invading a different interest, he is liable; e.g., consent to perform a tonsillectomy is not consent to perform an appendectomy (unless, of course, an emergency situation is present). 2. Self-DefenseWhen a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against the potential injury. a. When Is Defense Available?1) Reasonable BeliefThe actor need only have a reasonable belief as to the other party’s actions; i.e., apparent necessity, not actual necessity, is sufficient. Hence, reasonable mistake as to the existence of the danger does not vitiate the defense. 2) Retaliation Not AllowedSelf-defense is limited to the right to use force to prevent the commission of a tort. Thus, one may never use force in retaliation (where there is no longer any threat of injury). 3) Retreat Not NecessaryA substantial majority of the courts hold that one need not attempt to escape, but may stand his ground (and even use deadly force when necessary to prevent death or serious bodily harm to himself). A growing modern trend would impose a duty to retreat before using deadly force where this can be done safely unless the actor is in his own home. 4) Not Available to AggressorThe initial aggressor is not privileged to defend himself against the other party’s reasonable use of force in self-defense. However, if the other uses deadly force against an aggressor who had only used nondeadly force, the aggressor may defend himself with deadly force. **b. How Much Force May Be Used?**One may use only that force that reasonably appears to be necessary to prevent the harm. One may not use force likely to cause death or serious bodily injury unless he reasonably believes that he is in danger of serious bodily injury. If more force than necessary is used, the actor loses the privilege of self-defense. c. Extends to Third-Party InjuriesIf, in the course of reasonably defending himself, one accidentally injures a bystander, he is nevertheless protected by the defense. (He might, however, be liable to the bystander on a negligence theory if his conduct warranted it.) If the actor deliberately injures a bystander in trying to protect himself, he probably cannot raise the privilege of self-defense. **3. Defense of Othersa. When Is Defense Available?**The actor need only have a reasonable belief that the person being aided would have the right of self-defense. Thus, even if the person aided has no defense (e.g., if he were the initial aggressor), his defender is not liable as long as he reasonably believed that the person aided could have used force to protect himself. b) Misuse of Authority Misuse of authority in some circumstances may be actionable, e.g., school authorities threatening and bullying pupils. c) Offensive or Insulting Language Generally, offensive or insulting language will not be characterized as “outrageous conduct.” This result could change if there is a special relationship between plaintiff and defendant or a sensitivity on plaintiff’s part of which defendant is aware. (See below.) 4) Special Relationship Situations Common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is something less than outrageous, e.g., bus driver making insulting remarks to passenger. 5) Known Sensitivity If defendant knows that plaintiff is more sensitive and thus more susceptible to emotional distress than the average person, liability will follow if the defendant uses extreme and outrageous conduct intentionally to cause such distress and succeeds. These rules may also apply where defendant’s conduct is directed at individuals in certain groups such as children, pregnant women, and elderly people. c. Intent Defendant will be liable not only for intentional conduct but also for reckless conduct, i.e., acting in reckless disregard of a high probability that emotional distress will result. d. Causation The defendant’s conduct must have proximately caused the plaintiff’s emotional distress. 1) Intent/Causation Requirements in Bystander Cases When the defendant’s conduct is directed at a third person and the plaintiff suffers severe emotional distress, the elements of intent and causation may be harder to prove. To establish these elements in such cases, the plaintiff is generally required to show the following:- The plaintiff was present at the time;
- The distress resulted in bodily harm, or the plaintiff was a close relative of the third party; and
- The defendant knew these facts.
EXAMPLE
Defendant called Susan and threatened to kill Mike, with whom Defendant knew Susan was living. Defendant then made good his threat. Liability will attach when Susan suffers severe emotional distress by showing that Defendant’s purpose was to cause her severe distress, even though she was not a relative of Mike and was not present when he was murdered. 2) Special Liability for Mishandling Corpses In an analogous situation, many courts have allowed recovery where the mental distress resulted from the intentional or reckless mishandling of a relative’s corpse. Although this cause of action is almost always for emotional distress arising from action directed toward another (the corpse), the courts have created a special category of liability for such conduct. e. Actual Damages Required Actual damages are required (nominal damages will not suffice). But it is not necessary to prove physical injuries to recover. It is, however, necessary to establish severe emotional distress (i.e., more than a reasonable person could be expected to endure). Punitive damages are allowable where defendant’s conduct was improperly motivated.C. PRIMA FACIE CASE—INTENTIONAL TORTS TO PROPERTY
1. Trespass to Land a. Prima Facie Case To establish a prima facie case for trespass to land, the following elements must be proved:- An act of physical invasion of plaintiff’s real property by defendant;
- Intent on defendant’s part to bring about a physical invasion of plaintiff’s real property; and
- Causation.
- Same as above, except that Roberta was in fact a professional trick-shot artist. However, she gave him a $10 bill she knew to be counterfeit. This is a collateral matter; consent is effective.
- An act by defendant interfering with plaintiff’s right of possession in the chattel;
- Intent to perform the act bringing about the interference with plaintiff’s right of possession;
- Causation; and
- Damages.
- An act by defendant interfering with plaintiff’s right of possession in the chattel;
- Intent to perform the act bringing about the interference with plaintiff’s right of possession;
- Causation; and
- Damages—an interference that is serious enough in nature or consequences to warrant that the defendant pay the full value of the chattel.
- Wrongful acquisition, e.g., theft, embezzlement.
- Wrongful transfer, e.g., selling, misdelivering, pledging.
- Wrongful detention, e.g., refusing to return to owner.
- Substantially changing.
- Severely damaging or destroying.
- Misusing the chattel.
b. Particular Standards of Conduct
Some persons are held to a standard of conduct different from that of the ordinary person.1) Professionals
A person who is a professional or has special skills (e.g., doctor, lawyer, airplane mechanic, etc.) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing. For doctors, most courts will apply a national standard of care to evaluate their conduct. The professional must also use such superior judgment, skill, and knowledge as he actually possesses. Thus, a specialist might be held liable where a general practitioner would not. a) Duty to Disclose Risks of Treatment A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached this duty. EXAMPLE Patient consents to an operation not necessary to save his life. Patient is not informed that there is a 40% probability of paralysis in such operations, and paralysis results. Since a reasonable person would not have consented to the operation had the risks been disclosed, Doctor has breached his duty of disclosure.2) Children
A majority of courts take the view that a child is required to conform to the standard of care of a child of like age, intelligence, and experience. This permits a subjective evaluation of these factors. a) Minimum Age for Capacity to Be Negligent There is a minimum age for which it is meaningful to speak of a child being capable of conforming his conduct to a standard of care. Most courts, however, do not fix this age at any arbitrary figure. Each case is dealt with in terms of whether there is evidence that the individual child—plaintiff or defendant—has the experience, intelligence, maturity, training, or capacity to conform his conduct to a standard of care. It is unlikely, nonetheless, that a court would view a child below the age of five as having the capacity to be negligent. Or, to put it another way, it is unlikely that a court would impose a legal duty to avoid injuries to others or himself upon a child who is under five. b) Children Engaged in Adult Activities Where a child engages in a potentially dangerous activity that is normally one that only adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity, e.g., driving an automobile, flying an airplane, driving a motorboat.3) Common Carriers and Innkeepers
Common carriers and innkeepers are required to exercise a very high degree of care toward their passengers and guests; i.e., they are liable for slight negligence.4) Automobile Driver to Guest
In most jurisdictions today, the duty owed by the driver of an automobile to a rider is one of ordinary care. a) Guest Statutes A few states have guest statutes. Under these statutes, the driver’s only duty to a nonpaying rider is to refrain from gross or wanton and willful misconduct. Note that guest statutes do not apply to “passengers,” i.e., riders who contribute toward the expense of the ride; they are owed a duty of ordinary care.5) Bailment Duties
In a bailment relationship, the bailor transfers physical possession of an item of personal property to the bailee without a transfer of title. The bailee acquires the right to possess the property in accordance with the terms of the bailment. A bailment obligates the bailee to return the item of personal property to the bailor or otherwise dispose of it according to the bailment terms. EXAMPLE When the owner of a computer delivers it to a technician to be repaired, the technician becomes a bailee of the computer and the owner is the bailor. c. Entry upon Land to Remove Chattel- On Wrongdoer’s LandWhere chattels are located on the land of the wrongdoer, the owner is privileged to enter upon the land and reclaim them at a reasonable time and in a reasonable manner. It is generally required that there be a demand for the return of the chattels before any such entry.
- On Land of Innocent PartySimilarly, when the chattels are on the land of an innocent party, the owner may enter and reclaim her chattel at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. In this case, the chattel owner will be liable for any actual damage caused by entry.
- On Land Through Owner’s FaultIf the chattels are on the land of another through the owner’s fault, there is no privilege to enter upon the land. They may be recovered only through legal process.
- Privilege of ArrestDepending on the facts of the particular case, one may have a privilege to make an arrest of a third person.
- Invasion of LandThe privilege of arrest carries with it the privilege to enter another’s land for the purpose of effecting the arrest.
- Subsequent MisconductAlthough the arrest itself may be privileged, the actor may still be liable for subsequent misconduct, e.g., failing to bring the arrested party before a magistrate, unduly detaining the party in jail, etc.
- MistakeOne who makes an arrest under the mistaken belief that it is privileged may be liable for false imprisonment. (See B.3.b.6)a), supra.)
- NecessityA person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
- Public NecessityWhere the act is to avert an imminent public disaster, the defense is absolute.
- Private NecessityWhere the act is solely to prevent serious harm to a limited number of people (e.g., the actor ties up his boat to another’s dock in a storm), the defense is qualified; i.e., the actor must pay for any injury he causes. Exception: The defense is absolute if the act is to benefit the owner of the land.
- DisciplineA parent or teacher may use reasonable force in disciplining children, taking into account the age of the child and the seriousness of the behavior. In most states, however, this common law rule has been displaced by statutes or regulations forbidding the use of corporal punishment (physical discipline) by school teachers.
II. NEGLIGENCE
A. PRIMA FACIE CASE
To establish a prima facie case for negligence, the following elements must be proved:- The existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury;
- Breach of that duty by the defendant;
- That the breach of duty by the defendant was the actual and proximate cause of the plaintiff’s injury; and
- Damage to the plaintiff’s person or property.
B. THE DUTY OF CARE
1. Introduction—General Duty of Care
A general duty of care is imposed on all human activity. When a person engages in an activity, he is 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. Thus, if the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. No duty is imposed on a person to take precautions against events that cannot reasonably be foreseen. Therefore, if at the time of the negligent conduct, no foreseeable risk of injury to a person in the position of the plaintiff is created by the defendant’s act, the general duty of care does not extend from the defendant to the plaintiff. In addition, certain other factors such as the status of the parties (e.g., owners or occupiers of land) or statutes may limit or extend this general duty.2. To Whom Is the Duty of Care Owed?
A duty of care is owed only to foreseeable plaintiffs—the class of persons who were foreseeably endangered by the defendant’s negligent conduct. Someone who is not within the “zone of danger” from the defendant’s conduct cannot recover.EXAMPLE
An employee of Defendant negligently aided a passenger boarding the train, causing the passenger to drop a package. The package exploded, causing a scale a substantial distance away to fall upon a second passenger waiting on the platform. The second passenger cannot recover because a reasonable person would not have foreseen a risk of injury to her under the circumstances; in other words, she was not located in a foreseeable “zone of danger.” [See Palsgraf v. Long Island Railroad, 248 N.Y. 339 (1928) (Cardozo, J.)] Some courts follow the approach of the Andrews dissent in Palsgraf, whereby a duty of care is owed to anyone who suffers injuries proximately caused by the defendant’s negligence.a. Specific Situations
1) Rescuers
A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, defendant is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue. Note, however, that the “firefighter’s rule” (infra, 3.d.2)c)(2)(c)) bars firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the inherent risks of their jobs.2) Prenatal Injuries
Prenatal injuries are actionable; i.e., a duty of care is owed toward a fetus. The fetus must have been viable at the time of injury. (Most states also permit a wrongful death action (V.I.C.2., infra) if the fetus dies from the injuries.) a) “Wrongful Life” Action Not Recognized In most states, the failure to diagnose a congenital defect of the fetus or to properly perform a contraceptive procedure does not permit the unwanted child to recover damages for “wrongful life,” even if the child is born with a disability. b) Compare—“Wrongful Birth” and “Wrongful Pregnancy” The child’s parents, however, do have an action: either for failure to diagnose the defect (“wrongful birth”) or for failure to properly perform a contraceptive procedure (“wrongful pregnancy”). The mother can recover damages for the unwanted labor (medical expenses and pain and suffering). If the child has a defect, parents may recover the additional medical expenses to care for the child and, in some states, damages for emotional distress. If the child is born healthy in a wrongful pregnancy case, most cases do not permit the parents to recover child-rearing expenses, just damages for the unwanted labor.3) Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction is made (e.g., the beneficiary of a will) is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently. Note that this is an exception to the general rule that one who suffers only economic loss as a result of another’s negligence cannot recover damages in a tort action (see also IV.C.5., infra).3. What Is Applicable Standard of Care?
a. Basic Standard—The Reasonably Prudent Person
Defendant’s conduct is measured against a reasonably prudent person under the same or similar circumstances. This reasonable person has the following characteristics, measured by an objective standard:1) Physical Characteristics If Relevant—Same as Defendant’s
Notwithstanding application of the objective standard, if physical characteristics are relevant to the claim, the “reasonable person” is considered to have the same physical characteristics as the defendant. A person is expected to know any of his physical disabilities and is under a duty to exercise the care of a person with such knowledge; e.g., it may be negligent for a person with epilepsy to drive a car.2) Average Mental Ability
Defendant must act as would a person with average mental ability. Unlike the rule as to physical characteristics, individual mental disabilities are not considered; i.e., low IQ is no excuse. Likewise, insanity is no defense, and the defendant is held to the standard of a reasonable person under the circumstances.3) Same Knowledge as Average Member of Community
Defendant is deemed to have knowledge of things known by the average member of the community, e.g., that fire is hot. Again, the individual shortcomings of the particular defendant are not considered. On the other hand, a defendant with knowledge superior to that of the average person is required to use that knowledge.2) Duties of Possessor to Those on the Premises
Under the traditional rule followed in many jurisdictions, the nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff with regard to the property, i.e., trespasser, licensee, or invitee. Note, though, that close to half the states have abolished the distinction between licensees and invitees and simply apply a reasonable person standard to dangerous conditions on the land. A few of these states have gone even further and abolished the trespasser distinction as well. a) Duty Owed to a Trespasser (1) Definition of Trespasser A trespasser is one who comes onto the land without permission or privilege. (2) Duty Owed Undiscovered Trespassers A landowner owes no duty to an undiscovered trespasser. He has no duty to inspect in order to ascertain whether persons are coming onto his property. (3) Duty Owed Discovered Trespassers Once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve 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 less dangerous artificial conditions. The owner or occupier also has a duty to exercise reasonable care in the exercise of “active operations” on the property. (a) When Is a Trespasser “Discovered”? A trespasser is discovered, of course, when she is actually noticed on the property by the owner or occupier. But in addition, a trespasser is viewed as discovered if the owner or occupier is notified by information sufficient for a reasonable person to conclude that someone is on the property. (4) Duty Owed Anticipated Trespassers The majority of states now treat anticipated trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner. (a) When Is a Trespasser “Anticipated”? An “anticipated trespasser” situation arises where the landowner knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land. (Although note that if the owner has posted “no trespassing” signs, this might serve to convert these “anticipated” trespassers into “undiscovered” trespassers.) (5) “Attractive Nuisance” Doctrine Most courts impose upon a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Under the general rule, to assess this special duty upon the owner or occupier of land with regard to children on his property, the plaintiff must show the following:- There is a dangerous condition present on the land of which the owner is or should be aware;
- The owner knows or should know that young persons frequent the vicinity of this dangerous condition;
- The condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk; and
- The expense of remedying the situation is slight compared with the magnitude of the risk.
- Where compliance would cause more danger than violation; e.g., defendant drives onto wrong side of road to avoid hitting children who dart into his path; or
- Where compliance would be beyond defendant’s control; e.g., blind pedestrian crosses against light.
(3) Scope of Invitation
A person loses her status as an invitee if she exceeds the scope of the invitation—if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. (Note that the invitation normally does extend to the entrance and steps of a building.)EXAMPLE
Gas station customer, buying gas, loses status as invitee when she leaves pumps and falls into grease pit inside station. (Reversion to licensee, perhaps even trespasser, status.)(4) Duty Owed
The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of or make safe nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) plus a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.(a) Warning May Suffice
The requirement to “make safe” dangerous conditions usually is satisfied if a reasonable warning has been given.(b) Obviousness of Danger
A duty to warn usually does not exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it. “Obviousness” is determined by all of the surrounding circumstances.EXAMPLE
A banana peel visible on the floor of a supermarket might not be considered obvious if a shopper’s attention would likely be diverted by shelf displays.d) Users of Recreational Land
In almost all states, a different standard applies by statute to users of recreational land. If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.EXAMPLE
The owner of a large tract of undeveloped rural land who permits the general public to use a pond on the land for swimming and fishing would be covered by this type of statute, whereas the owner of a swimming pool who permits his house guests to swim whenever they visit would not be covered by the statute (he would owe his guests the usual duties owed to licensees).3) Duties of a Lessor of Realty
a) General Duty Rule
Ordinarily, tort liability in regard to conditions on the property is an incident of occupation and control. Thus, when the owner leases the entire premises to another, the lessee, coming into occupation and control, becomes burdened with the duty to maintain the premises in such a way as to avoid unreasonable risk of harm to others. Similarly, where the owner leases portions of the premises to tenants, the owner continues to be subject to liability as a landowner for unreasonably dangerous conditions in those portions of the premises such as corridors, entry lobby, elevators, etc., used in common by all tenants, or by third persons, and over which the owner has retained occupation and control.b) Exceptions
This basic duty, however, is subject to certain exceptions and extensions, as set forth below.(1) Duty of Lessor to Lessee
The lessor is obligated to give warning to the lessee of existing defects in the premises of which the lessor is aware, or has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection.(2) Effect of Lessor’s Covenant to Repair
If the lessor has covenanted to make repairs and reserves the right to enter the leased premises for the beyond the minimum that the statute was designed to meet, it may be found that there is negligence in not doing more. 5) Violation of a Civil Remedy Statute Where the statute in question provides for a civil remedy, plaintiff will sue directly under the statute; i.e., it is not a common law negligence case. f. Duty Regarding Negligent Infliction of Emotional Distress A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (1) plaintiff must be within the “zone of danger”; and (2) plaintiff must suffer physical symptoms from the distress. 1) Plaintiff Must Be Within the “Zone of Danger” The plaintiff usually must show that her distress has been caused by a threat of physical impact; i.e., she was within the “zone of danger.” EXAMPLE Driver negligently ran a red light and skidded to a stop inches away from Pedestrian, who was properly crossing the street in a crosswalk. Pedestrian’s shock from nearly being run over caused her to suffer a heart attack. Pedestrian can recover for negligent infliction of emotional distress because she was in the zone of danger. 2) Plaintiff Must Suffer Physical Symptoms from the Distress For the plaintiff to recover damages in a zone of danger case, most courts usually require that the defendant’s conduct cause the plaintiff emotional distress that manifests itself in physical symptoms (e.g., a nervous breakdown, miscarriage, or heart attack, but note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement). A growing minority of states have dropped the requirement of physical symptoms. 3) Special Situations Where Requirements Not Always Necessary a) Bystander Not in Zone of Danger Seeing Injury to Another Traditionally, a bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another could not recover damages for her own distress. A majority of states now allow recovery in these cases as long as (1) the plaintiff and the person injured by the defendant are closely related, (2) the plaintiff was present at the scene of the injury, and (3) the plaintiff personally observed or perceived the event. Most of these states also drop the requirement of physical symptoms in this situation. EXAMPLE Mother sees her child struck by negligently driven automobile on the other side of the street and goes into shock. Most courts would allow recovery. b) Special Relationship Between Plaintiff and Defendant The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant’s negligence has great potential to cause emotional distress. Most states drop the requirement of physical symptoms in this situation as well. EXAMPLES- Doctor negligently confused Patient’s file with another and told Patient he had a terminal illness. Patient, who in fact did not have the illness, became extremely distressed as a result. Patient can recover for negligent infliction of emotional distress because negligently providing a false diagnosis of a terminal illness creates a foreseeable risk of severe emotional distress to the patient.
- Mortuary negligently cremated the body of Plaintiff’s mother contrary to Plaintiff’s explicit instructions that her body be buried. Plaintiff is devastated by the mortuary’s error. Plaintiff can recover for negligent infliction of emotional distress because mishandling a relative’s corpse creates a foreseeable risk of severe emotional distress to family members.
- Same facts as above example, except that an arsonist caused the explosion. Most courts would not hold Defendant liable here. They think it unfair to make him responsible for such malevolent conduct. The important point here is that an unforeseeable intervening force may still relieve the defendant of liability if it is an unforeseeable crime or intentional tort of a third party.
- Common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on, e.g., a ticket, a posted sign, etc.
- When a statute is enacted to protect a class, members of that class will not be deemed to have assumed any risk.
- Risks will not be assumed in situations involving fraud, force, or an emergency. Thus, for example, one could take action to
- The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
- The activity is not a matter of common usage in the community.
- As a result of Defendant’s negligence, Plaintiff’s leg is broken. Walking on crutches, Plaintiff falls and breaks her other leg. Defendant is liable.
- The defendant is a commercial supplier;
- The defendant produced or sold a product that was defective when it left the defendant’s control;
- The defective product was the actual and proximate cause of the plaintiff’s injury; and
- The plaintiff suffered damages to person or property.
- Interest from date of damage in personal injury action; and
- Attorneys’ fees.
III. LIABILITY WITHOUT FAULT (STRICT LIABILITY)
A. PRIMA FACIE CASETo establish a prima facie case for strict liability, the following elements must be shown:- The nature of the defendant’s activity imposes an absolute duty to make safe;
- The dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; and
- The plaintiff suffered damage to person or property.
- Intent;
- Negligence;
- Strict liability;
- Implied warranties of merchantability and fitness for a particular purpose; and
- The existence of a legal duty owed by the defendant to that particular plaintiff;
- Breach of that duty;
- Actual and proximate cause; and
- Damages.
- Usefulness and desirability of the product;
- Availability of safer alternative products;
- The dangers of the product that have been identified by the time of trial;
- Likelihood and probable seriousness of injury;
- Obviousness of the danger;
- Normal public expectation of danger (especially for established products);
- Avoidability of injury by care in use of product (including role of instructions and warnings); and
- Feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive.
- A power lawnmower that is marketed with no guard over the opening from which cut grass is blown may be unreasonably dangerous even though the product carries several warnings that hands and feet should be kept away from the opening and that rocks may be ejected from the opening. While the product’s danger is within the expectations of the user, a court will compare the harm caused by the product with what it would cost to put a guard on the opening and consider whether the guard would impair the machine’s operation in order to determine whether the product is “defective.”
- Liquid furniture polish provided for home use may be fit for its intended use, but the manufacturer must anticipate that it will be used around small children who may play with the bottle and spill or drink its contents. Thus, the manufacturer may have to design a product that is either safe when drunk or that has a childproof top. A simple warning of danger may not suffice in most states under the “feasible alternative” approach if a childproof top would cost little to install.
- If the boiler in use on a shoe manufacturer’s land explodes, the shoe manufacturer’s liability is not analyzed in terms of products liability because the manufacturer is not a commercial supplier of boilers.
- Scope of CoverageThe Uniform Commercial Code (“UCC”) provisions apply to the sale of goods under Article 2 and the lease of goods under Article 2A.
- Implied Warranty of MerchantabilityWhen a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable. [UCC §2-314] “Merchantable” means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used.
- Implied Warranty of Fitness for Particular PurposeAn implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know:
- The particular purpose for which the goods are required; and
- That the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods.
- Privitya. Vertical Privity No Longer RequiredAlthough, in the early period of warranty law, courts held strictly to the requirement of complete privity between the plaintiff and defendant, a trend developed with courts finding the needed privity between remote parties on various fictions and theories—e.g., the warranty ran with the goods, or the retailer was the manufacturer’s agent. As a result, most courts no longer require vertical privity between the buyer and the manufacturer in implied warranty actions.
- Effect of DisclaimersDisclaimers of liability for breach of implied warranty must be specific and are narrowly construed. [UCC §2-316] Contractual limitations on personal injury damages resulting from a breach of warranty for consumer goods are prima facie unconscionable. [UCC §2-719]
- CausationIssues of actual cause and proximate cause are treated as in an ordinary negligence case.
- DamagesIn addition to personal injury and property damages, purely economic losses are recoverable in implied warranty actions.
- Defensesa. Assumption of RiskUCC section 2-715 indicates that when the plaintiff assumes the risk by using a product while knowing of the breach of warranty, any resulting injuries are not proximately caused by the breach.
C. SURVIVAL AND WRONGFUL DEATH
1. Survival of Tort Actions
At common law, a tort action abated at the death of either the tortfeasor or the victim. Most states have changed this by statute, i.e., the “survival acts.” Thus, a victim’s cause of action will survive to permit recovery of all damages from the time of injury to the time of death. In the majority of states, these acts apply to both torts to property and torts resulting in personal injury.a. Torts that Expire on Victim’s Death
Exceptions exist in most jurisdictions for those torts that invade an intangible personal interest, e.g., defamation, malicious prosecution, etc. These torts are felt to be so personal as to expire upon the victim’s death.2. Wrongful Death
Every state has now enacted some form of wrongful death act.a. Who May Bring Action?
In some jurisdictions, the personal representative is the proper party to bring the action; in others, the surviving spouse or next of kin herself might be the proper party.b. Measure of Recovery
The measure of recovery in wrongful death actions under most statutes is for the pecuniary injury resulting to the spouse and next of kin. Basically, this allows recovery for loss of support, loss of companionship, etc. It does not allow any recovery for decedent’s pain and suffering; those damages would be an element of a personal injury survival action (see above) brought on behalf of the decedent.1) Deaths of Children, Elderly People
Even though the actual loss of support may be very small where decedent is a child or elderly person, most states, nonetheless, allow recovery. Usually, the judgment is quite modest.2) Rights of Creditors
Creditors of the decedent have no claim against the amount awarded.c. Effect of Defenses
1) Defenses Against Deceased
Recovery is allowed only to the extent that the deceased could have recovered in the action if he had lived. Thus, for example, his contributory negligence would reduce or bar a wrongful death recovery in comparative negligence states.2) Defenses Against Beneficiary
Defenses against potential beneficiaries do not bar the action. However, that particular beneficiary’s recovery will be reduced or barred under the state’s comparative negligence rules. The total damage award assessed by the jury will be reduced by the amount withheld from the beneficiary.D. TORTIOUS INTERFERENCES WITH FAMILY RELATIONSHIPS
1. Spousal
In most jurisdictions, a spouse may recover damages for loss of their spouse’s consortium or services because of injuries to the spouse from defendant’s tortious conduct, whether intentional, negligent, or based on strict liability.EXAMPLE
Chauncey hits Husband on the head with a lead pipe, leaving him in a coma for several months and permanently disabled. Wife can recover from Chauncey for loss of consortium and services.2. Parent-Child
a. Parent’s Actions
A parent may maintain an action for loss of the child’s services and consortium when the child is injured as a result of defendant’s tortious conduct, whether such conduct is intentional, negligent, or based on strict liability.b. Child’s Action
A child has no action in most jurisdictions against one who tortiously injures his parent.3. Nature of Action for Family Relationship Interference
The action for interference with family relationships is derivative. Recovery in the derivative action depends on the potential success of the injured family member’s own action. Thus, any defense that could be raised against the injured family member, e.g., her own contributory negligence, can also be raised in the derivative action for interference with family relationships. Furthermore, a defense against a family member seeking such a derivative recovery may also be raised in this action.EXAMPLE
Husband and Wife, while driving, collide with Chauncey’s car. Wife is severely injured; Husband and Chauncey are both negligent. Husband’s recovery in his car, a stone is thrown through the windshield, shattering the glass. F, hurt by flying glass, has a strict liability action against D for misrepresentation even though F is not in privity with D and knows nothing of the “shatterproof” representation. e. Actual Cause Reliance by the purchaser serves to show actual cause. f. Proximate Cause and Damages Both elements are analyzed in the same manner as for products liability cases based on negligence or strict liability, supra. If the plaintiff can show that the misrepresentation was intentional, some courts will allow punitive damages to be claimed. g. Defenses 1) Assumption of Risk If the plaintiff is entitled to rely on the representation, a defense of assumption of risk does not apply. EXAMPLE D markets a mace pen to be used against attackers. The product’s label says that it instantly renders attackers helpless when sprayed in their faces. When holdup men demanded money from P, P shot his mace pen in their faces but it had no effect—except that the attackers got angry and shot P. D’s claim that P assumed the risk of injury by not complying with the attackers’ demands fails, since P reasonably relied on the product to achieve its stated results. 2) Contributory Negligence (Fault) Whether contributory negligence is a defense depends on the type of misrepresentation. For negligent misrepresentations, contributory negligence is a valid defense. In strict liability actions, the plaintiff’s unreasonable behavior is analyzed as in other strict liability actions for defective products, supra. If the plaintiff can show that the defendant’s misrepresentation was intentional, contributory negligence would be no defense. V. NUISANCE A. BASIS OF LIABILITY Nuisance is not a separate tort in itself, subject to rules of its own. Nuisances are types of harm—the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability. In other words, the defendant’s conduct may have been intentional or negligent or subjected to liability on a strict liability basis. As a practical matter, nuisances generally are intentional interferences because defendant has been made aware that his conduct is interfering with plaintiff’s use of her land. (If strict liability is the basis for redressing a nuisance, courts sometimes refer to this as an “absolute” nuisance or “nuisance per se.”) B. PRIVATE NUISANCE Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property he actually possesses or to which he has a right of immediate possession. 1. Substantial Interference The interference with plaintiff’s right in his land must be substantial. This means that it must be offensive, inconvenient, or annoying to an average person in the community. It will not be characterized as substantial if it is merely the result of plaintiff’s hypersensitivity or specialized use of his own property. 2. Unreasonable Interference For a nuisance based on intent or negligence, the interference with plaintiff’s use of his land must be unreasonable. To be characterized as unreasonable, the severity of the inflicted injury must outweigh the utility of defendant’s conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant. 3. Trespass to Land Distinguished Trespass to land is to be distinguished from private nuisance. In the former, there is an interference with the landowner’s exclusive possession by a physical invasion of the land; in the latter, there is an interference with use or enjoyment. C. PUBLIC NUISANCE Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, e.g., blocking a highway or using a building to commit criminal activities such as prostitution, bookmaking, etc. Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large. EXAMPLE Pedestrians generally are inconvenienced by having to walk around an obstruction maintained by defendant on the sidewalk. Plaintiff, however, has tripped and fallen. This unique damage permits plaintiff to recover for the public nuisance. 1. Express WarrantyAn express warranty arises where a seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes part of the “basis of the bargain.” [UCC §2-313] a. Scope of CoverageAs with implied warranties, Article 2A of the UCC extends express warranties to leases. b. Privity Not RequiredAlthough UCC section 2-318 declares that its privity alternatives apply to express as well as implied warranties, most courts have held privity to be irrelevant in express warranty cases. **c. “Basis of the Bargain”**If the buyer is suing, the warranty must have been “part of the basis of the bargain.” This is probably less difficult to show than a buyer’s subjective “reliance” on the representation. If someone not in privity is permitted to sue, this remote person need not have known about the affirmation as long as it became part of the basis of the bargain for someone else in the chain of distribution. d. Basis of Liability—Breach of WarrantyAs with implied warranties, the plaintiff need not show that the breach occurred through the fault of the defendant, but only that a breach of the warranty did in fact occur. EXAMPLEThe defendant advertises its hand lotion as “completely safe” and “harmless.” Even if there is nothing wrong with the product itself, a buyer who suffers an allergic reaction may bring a successful warranty action. e. Effect of DisclaimersUCC section 2-316 provides that a disclaimer will be effective only to the extent that it can be read consistently with any express warranties made. This has the effect of making it practically impossible to disclaim an express warranty. f. Causation, Damages, and DefensesThese elements are analyzed the same as under implied warranties, supra. 2. Misrepresentation of FactLiability for misrepresentation may arise when a representation by the seller about a product induces reliance by the buyer. In products cases, liability for misrepresentation is usually based on strict liability, but may also arise for intentional and negligent misrepresentations. a. Defendant’s State of Mind1) Strict LiabilityAs long as the defendant is a seller engaged in the business of selling such products, there is no need to show fault on the defendant’s part. The plaintiff need only show that the representation proved false, without regard to the defendant’s state of mind. 2) Intentional MisrepresentationFor intentional misrepresentations, the plaintiff must show that the misrepresentation was made knowingly or with reckless disregard for the facts. 3) Negligent MisrepresentationFor negligence liability, knowledge of the misrepresentation on the part of the defendant need not be proved. The plaintiff need only show that a reasonable person should have known such representations to be false when making them. b. Material Fact RequiredThe misrepresentation must be of a material fact, i.e., a fact concerning the quality, nature, or appropriate use of the product on which a normal buyer may be expected to rely. “Puffing” and statements of opinion are not sufficient. c. Intent to Induce Reliance of Particular BuyerThe defendant must have intended to induce the reliance of the buyer, or a class of persons to which the buyer belongs, in a particular transaction. Evidence of a representation made to the public by label, advertisement, or otherwise is sufficient to show an intent to induce reliance by anyone into whose hands the product may come. d. Justifiable RelianceThere is no liability if the misrepresentation is not known or does not influence the transaction. Reliance may be found if the representation was a substantial factor in inducing the purchase, even though not the sole inducement. 1) Reliance Need Not Be Victim’sAs with express warranties, privity is irrelevant for misrepresentation and the required reliance may be shown to be that of a prior purchaser who passed the product on to the victim. EXAMPLED, a manufacturer of automobiles, advertises that its cars contain “shatterproof” glass. H reads this advertisement and, partly in reliance on it, buys one of D’s cars. While H’s friend, F, is driving the a. Child Acting as Agent for ParentsCourts may impose vicarious liability if the child commits a tort while acting as the agent for the parents. EXAMPLEParent vicariously liable if child is in an accident while running an errand for his mother, or driving his sister to school, but not while on a date. b. Parent Liable for Own NegligenceThe parent may be held liable for her own negligence in allowing the child to do something, e.g., use a dangerous object without proper instruction. Further, if the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, she may be liable for not using due care in exercising control to mitigate such conduct, e.g., by allowing the child to play with other children he has a history of attacking. 7. TavernkeepersAt common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct. Many states, to avoid this common law rule, have enacted “Dramshop Acts.” Such acts usually create a cause of action in favor of any third person injured by the intoxicated vendee. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability. B. PARTIES—MULTIPLE DEFENDANT ISSUES1. Joint and Several LiabilityWhen two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means that each is liable to the plaintiff for the entire damage incurred. Joint and several liability applies even though each tortfeasor acted entirely independently. However, if the actions are independent, plaintiff’s injury is divisible, and it is possible to identify the portion of injuries caused by each defendant (e.g., Car 1 breaks plaintiff’s leg, and Car 2 breaks plaintiff’s arm), then each will only be liable for the identifiable portion. a. Tortfeasors Acting in ConcertWhen two or more tortfeasors act in concert (i.e., by agreement) and injure plaintiff, then each will be jointly and severally liable for the entire injury. This is so even though the injury is divisible and one could identify what each tortfeasor has done alone. b. Statutory LimitationsMany states have limited the joint liability doctrine by statute in cases based on fault. Two of the most common types of statutes abolish joint liability either (1) for those tortfeasors judged to be less at fault than the plaintiff, or (2) for all tortfeasors with regard to noneconomic damages (e.g., pain and suffering). The liability of a tortfeasor in these situations is proportional to his fault. 2. Satisfaction and Releasea. SatisfactionIf plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment, there is a “satisfaction.” She may not recover further against any other joint tortfeasor. Until there is a satisfaction, however, she may proceed against other jointly liable parties. b. ReleaseA release is a surrender of plaintiff’s cause of action against the party to whom the release is given. In most states, a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement. Rather, the claim against the others is reduced to the extent of the amount stipulated in the agreement or the amount of consideration paid, whichever is greater. 3. Contribution and Indemnitya. ContributionAs stated above, where joint and several tort liability exists, it permits plaintiff to recover the entire judgment amount from any tortfeasor. The rule of contribution, adopted in some form in most states, allows any tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess. Thus, contribution is a device whereby responsibility is apportioned among those who are at fault. 1) Methods of Apportionmenta) Comparative ContributionMost states have a comparative contribution system (discussed below), whereby contribution is imposed in proportion to the relative fault of the various tortfeasors. b) Equal SharesA minority of states require all tortfeasors to pay equal shares regardless of their respective degrees of fault. 2) Contribution Tortfeasor Must Have LiabilityThe tortfeasor from whom contribution is sought must be originally liable to the plaintiff. If the contribution tortfeasor has a defense EXAMPLEThe statement “I don’t think Robert can be trusted with a key to the cash register” implies personal knowledge of dishonest conduct by Robert, and thus may be actionable. 1) Distinguishing Fact and OpinionWhether a published statement is one of “fact” or “opinion” depends on the circumstances surrounding the publication and the nature of the words used. Generally, the broader the language used, the less likely that it will be reasonably interpreted as a statement of fact or an opinion based on specific facts. d. Who May Be Defamed?1) IndividualAny living person may be defamed. Defamation of a deceased person is not actionable. 2) Corporation, Unincorporated Association, and PartnershipIn a limited sense, a corporation, unincorporated association, or partnership may also be defamed, for example, by remarks as to its financial condition, honesty, integrity, etc. 3. “Of or Concerning” the PlaintiffThe plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. a. ColloquiumA statement may be actionable even though no clear reference to the plaintiff is contained on the face of the statement. In such a case, however, the plaintiff is required to introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff. Pleading and proving such extrinsic facts to show that the plaintiff was, in fact, intended is called “colloquium.” b. Group DefamationA significant issue is presented with respect to this prima facie case element when the defamatory language refers to a group without identifying any particular individual within that group. In such cases, the following rules operate: 1) All Members of Small GroupWhere the defamatory language refers to all members of a small group, each member may establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group. 2) All Members of Large GroupIf, however, the defamatory statement refers to all members of a large group, no member of that group may establish this element of the cause of action. 3) Some Members of Small GroupWhere the defamatory language refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff. 4. PublicationA statement is not actionable until there has been a “publication.” The publication requirement is satisfied when there is a communication to a third person who understood it. EXAMPLELibby saw a defamatory statement about Jeffrey printed in Russian. The publication requirement is not met unless it is shown that Libby understood the Russian words. The communication to the third person may be made either intentionally or negligently. a. Only Intent to Publish RequiredOnce publication is established, it is no defense that the defendant had no idea that she was defaming plaintiff because she neither knew nor had reason to know that plaintiff existed (use of fictional name), nor knew that the publication was defamatory. It is the intent to publish, not the intent to defame, that is the requisite intent. EXAMPLEDefendant published a false statement that Plaintiff had given birth to twins. If Defendant neither knew nor had reason to know that Plaintiff had been married only one month, Defendant is nonetheless liable. b. RepetitionEach repetition of the defamatory statement is a separate publication for which the plaintiff may recover damages. c. “Single Publication” Rule—Statute of LimitationsHowever, as to publication of a defamatory statement in a number of copies of the same newspaper, magazine, or book, most American- Force is authorized in the employment, e.g., bouncer.
- Friction is generated by the employment, e.g., bill collector.
- The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy.
- The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting.
- The duty is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers.
- Two roommates were driving to a store to get decorating materials for their apartment when an accident occurred. Held: Joint venture.
- Two parents were driving child to hospital. Held: No joint venture.
- Defamatory language on the part of the defendant;
- The defamatory language must be “of or concerning” the plaintiff—meaning it must identify the plaintiff to a reasonable reader, listener, or viewer;
- Publication of the defamatory language by the defendant to a third person;
- Falsity of the defamatory language;
- Fault on the defendant’s part; and
- Damage to the reputation of the plaintiff.
- Injunctive ReliefWhere the legal remedy of damages is unavailable or inadequate, injunctive relief may be granted. The legal remedy may be inadequate for a variety of reasons, e.g., the nuisance is a continuing wrong, the nuisance is of the kind that will cause irreparable injury, etc. In deciding whether an injunction should issue, the courts take into consideration the relative hardships that will result to the parties from the grant or denial of the injunction. Hardships will not be balanced, however, where defendant’s conduct was willful.
- Abatement by Self-Helpa. Abatement of Private NuisanceOne has the privilege to enter upon defendant’s land and personally abate the nuisance after notice to defendant and defendant’s refusal to act. The force used may be only that necessary to accomplish the abatement, and the plaintiff is liable for additional harm done.
- Conduct of OthersNo one actor is liable for all the damage caused by the concurrence of his acts and others.
- Contributory NegligenceContributory negligence is not ordinarily a defense to the tort of nuisance. However, when a nuisance is based on a negligence theory, one may not
- “Coming to the Nuisance”The problem: Has plaintiff assumed the risk, thereby being barred from recovery by the fact that he has “come to the nuisance,” by purchasing land and moving in next to the nuisance after it is already in existence or operation? The prevailing rule is that, in the absence of a prescriptive right, the defendant may not condemn surrounding premises to endure the nuisance; i.e., the purchaser is entitled to reasonable use or enjoyment of his land to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit.
- Doctrine of Respondeat SuperiorAn employer will be vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of the employment relationship.
E. TORT IMMUNITIES
1. Intra-Family Tort Immunities
a. Injury to Person
Under the traditional view, one member of a family unit (spouse, parent, or unemancipated child) could not sue another in tort for personal injury. This view has undergone substantial change in most states.1) Interspousal Immunity Abolished
Most states have abolished interspousal immunity. Either spouse may now maintain a tort action against the other.2) Parent-Child Immunity Limited
A slight majority of states have abolished parent-child immunity; however, these states generally grant parents broad discretion in the parent’s exercise of parental authority or supervision. The remaining states retain parent-child immunity but do not apply it in cases of intentional tortious conduct and, in many of these states, in automobile accident cases (at least to the extent of insurance coverage).b. Injury to Property
A suit for property damage may usually be maintained by any family member against any other family member. In short, to the extent that intra-family tort immunity exists, it applies to personal, not property, injuries.2. Governmental Tort Immunity
Under the doctrine of sovereign immunity, governmental units were traditionally not subject to tort actions unless they had consented to the suit. Now, by statute and judicial decision, that immunity is considerably limited. Note, however, that a waiver of sovereign immunity does not create any new tort duties; it only waives immunity for existing statutory or common law duties of care.a. Federal Government
By virtue of the Federal Tort Claims Act, Title 28 U.S.C., the United States has waived immunity for tortious acts. Under its provisions, the federal government may now be held liable to the same extent as a private individual. However, the Act spells out several situations where this immunity will still attach:1) United States Still Immune for Certain Enumerated Torts
Immunity still attaches 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 with contract rights.2) Discretionary Acts Distinguished from Ministerial Acts
The immunity is not waived for acts characterized as “discretionary,” as distinguished from those acts termed “ministerial.” In general, discretionary activity is that involving considerations of political or economic policy, usually made by senior officials, while ministerial acts are performed at the operational level of government (e.g., repairing traffic signals, driving a vehicle).3) Government Contractors
A government contractor may assert the federal government’s immunity defense in a products liability case if the contractor conformed to reasonable, precise specifications approved by the government and warned the government about any known dangers in the product.b. State Governments
Most states have substantially waived their immunity from tort actions to the same extent as the federal government. Thus, immunity still attaches for discretionary acts and for legislative and judicial decisionmaking. Note: Where federal or state sovereign immunity still attaches, it also, as a general rule, covers not only “the government” but the various federal and state agencies as well, e.g., schools, hospitals, etc.c. Municipalities
About half of the states have abolished municipal tort immunity by statute or judicial decision to the same extent that they have waived their own immunity. Hence, immunity is abolished for everything but discretionary acts and policy decisions.1) Immunity Abolished—Public Duty Rule Limitation
Where municipal immunity has been abolished, many courts apply the “public duty” doctrine to limit the scope of government liability. A duty that is owed to the public at large, such as the duty of police to protect citizens, is not owed to any particular citizen, and no liability exists for failure to provide police protection in the absence of a special relationship between the municipality and the citizen that gives rise to a special duty. A special relationship can be shown by: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking. courts have adopted the “single publication” rule. Under this rule, all copies of a newspaper, magazine, or book edition are treated as only one publication. The publication is deemed to occur when the finished product is released by the publisher for sale (a matter which is, obviously, most important for the running of the statute of limitations). Damages are still calculated on the total effect of the story on all of the readers.d. Who May Be Liable?
1) Primary Publisher
Each individual who takes part in making the publication is charged with the publication as a primary publisher; for example, a newspaper or TV station carrying a defamatory message would be viewed as a primary publisher and held responsible for that message to the same extent as the author or speaker. Note, however, that an Internet service provider is not treated as a publisher when a user of its service posts defamatory content.2) Republisher
A republisher (that is, one who repeats a defamatory statement) will be held liable on the same general basis as a primary publisher. This is so even if the repeater states the source or makes it clear that she does not believe the defamation. Note: Where there has been a republication, the original defamer’s liability may be increased to encompass any new harm caused by the repetition if the republication was either (1) intended by the original defamer or (2) reasonably foreseeable to her.3) Secondary Publishers
One who is responsible only for disseminating materials that might contain defamatory matter (for example, a vendor of newspapers, a player of an audio recording) is viewed as a secondary publisher. Such individuals are liable only if they know or should know of the defamatory content.5. Falsity
At common law, a defamatory statement was presumed to be false. The Supreme Court, however, rejected this presumption in all cases in which the plaintiff is constitutionally required to prove some type of fault (see below). In these cases, the plaintiff must prove as an element of the prima facie case that the statement was false. [Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)] A majority of states also now require that the plaintiff establish falsity in all defamation cases as a matter of state law.a. Exam Approach
Even where the statement is true, it may nonetheless give rise to liability if it is uttered under circumstances sufficient to constitute intentional infliction of severe emotional distress or invasion of the right to privacy; hence, consider these torts as well when your exam question presents potentially defamatory statements. However, where the plaintiff is a public figure or the matter is one of public concern, and recovery for defamation would be barred on First Amendment grounds, he will not be allowed to rely on these other tort theories. [Snyder v. Phelps, 562 U.S. 443 (2011)]6. Fault on Defendant’s Part
Although at common law defamation liability could be strict, a number of Supreme Court decisions based on the First Amendment impose a fault requirement in cases involving public figures or matters of public concern depending on the type of plaintiff. In addition, a majority of states now require a showing of fault on the part of the defendant (at least negligence) in all defamation cases as a matter of state law.a. Public Officials—Actual Malice Required
A public official may not recover for defamatory words relating to his official conduct in the absence of “clear and convincing” proof that the statement was made with “actual malice.” (See below.) [New York Times v. Sullivan, 376 U.S. 254 (1964)]b. Public Figures—Actual Malice Required
The rule of New York Times v. Sullivan has been extended to cover litigation where the plaintiff is a public figure. [Associated Press v. Walker, 388 U.S. 130 (1967); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)]1) What Constitutes a Public Figure?
A person may be deemed a “public figure” on one of two grounds: (1) where he has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts (for example, celebrity sports figure); or (2) where he voluntarily assumes a central role in a particular public controversy (for example, prominent community activist) and thereby becomes a “public figure” for that limited range of issues. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)] In Gertz, the Court indicated that it might be possible for a person to become a public figure through no purposeful action of his own, but considered such instances to be “exceedingly rare.” Subsequent cases support this interpretation. [Time, Inc. v. Firestone, 424 U.S. 448 (1976); Hutchinson v. Proxmire, 443 U.S. 111 (1979); Wolston v. Reader’s Digest Association, 443 U.S. 157 (1979)] of the general rule in torts that damages must be proved in negligence actions (see supra, II.E.) but usually are not required where the defendant is more culpable, such as for intentional torts. 2) Matters of Purely Private Concern—No Constitutional Limitations When the defamatory statement involves a matter of purely private concern, the constitutional limitations established by Gertz do not apply. Thus, presumed and punitive damages might be recoverable even if actual malice is not established. Note, though, that most states now require proof of negligence as a matter of state law even for defamation on matters of private concern. 3) What Is a Matter of Public Concern? To determine whether the matter is a public or private concern, the courts will look to the content, form, and context of the publication. [Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)] EXAMPLE In Dun & Bradstreet, the Court determined that a credit agency’s erroneous report of plaintiff’s bankruptcy, distributed to five subscribers, was speech solely in the private interest of the speaker and its specific business audience. The content (the bankruptcy of a small business), the form (a credit agency report), and the context (a communication to only five subscribers) established that a matter of public concern was not involved.7. Damage to Plaintiff’s Reputation
In ascertaining whether this element of the plaintiff’s prima facie case has been satisfied, it may be necessary to distinguish between libel and slander. As will be seen below, the burden of proof as to damages (to the plaintiff’s reputation) may depend on this distinction.a. General and Special Damages
1) General or Presumed Damages
General damages are presumed by law and need not be proved by the plaintiff. They are intended to compensate the plaintiff for the general injury to her reputation caused by the defamation. Note: Constitutional free speech and press considerations may restrict an award of presumed damages when the defamation involves matters of “public concern.” [Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., supra] [See 6.d.3 above.]2) Special Damages
Special damages in a defamation law context means that the plaintiff must specifically prove that she suffered pecuniary loss as a result of the defamatory statement’s effect on her reputation, and are not proved merely by evidence of actual injury—such as the loss of friends, humiliation, or wounded feelings. The loss of a job, a prospective gift or inheritance, an advantageous business relationship, or customers are pecuniary losses such as those contemplated by the special damages requirement.b. Libel
1) Definition
Libel is a defamatory statement recorded in writing or some other permanent form. A libel may also be recorded by radio or television in some circumstances. (See below.)2) Damages Rules for Libel
a) General Damages Presumed In most jurisdictions, general damages are presumed by law for all libels; that is, special damages need not be established. b) Libel Distinction—Minority Position A substantial minority of courts distinguish between libel per se and libel per quod in determining whether a libel is actionable without proof of special damages. (1) Libel Per Se—Presumed Damages These courts take the position that injury to the reputation of the plaintiff is presumed by law only if the statement is libelous and defamatory on its face (libel per se). Thus, such libels are actionable without pleading or proving special damages. (2) Libel Per Quod—Special Damages Usually Required The libelous statement that is not defamatory on its face, but that requires reference to extrinsic facts to establish its defamatory content, is characterized as libel per quod by these courts. These courts generally require special damages to be pleaded and proved for such libels.c. Slander
1) Definition
Slander is spoken defamation. It is to be distinguished from libel in that the defamation is in less permanent and less physical form. e) Common Interest of Publisher and Recipient When there is a common interest between the publisher and the recipient, there is a qualified privilege. EXAMPLE A statement by one board member of a charitable foundation, relating to the foundation’s business, to another board member is qualifiedly privileged.- Loss of Qualified Privilege Through Abuse
- Qualified Privilege—Burden of Proof
- Mitigating Factors
B. INVASION OF RIGHT TO PRIVACY
The right to protection against unreasonable interferences with an individual’s solitude is well recognized. The tort of invasion of privacy as it has developed, however, includes protection of “personality” as well as protection against interference with solitude. In all, the tort includes the following four kinds of wrongs:- Appropriation by defendant of plaintiff’s picture or name for defendant’s commercial advantage;
- Intrusion by the defendant upon plaintiff’s affairs or seclusion;
- Publication by the defendant of facts placing the plaintiff in a false light; and
- Public disclosures of private facts about the plaintiff by the defendant.
1. Appropriation of Plaintiff’s Picture or Name
a. Prima Facie Case
To establish a prima facie case for invasion of privacy—appropriation of plaintiff’s picture or name—only one element need be proved:- Unauthorized use by defendant of plaintiff’s picture or name for defendant’s commercial advantage.
b. Limited to Advertisement or Promotion of Product or Services
Liability is generally limited to the use of plaintiff’s picture or name in connection with the promotion or advertisement of a product or service, e.g., use of plaintiff’s picture to advertise an automobile.c. What Is Actual Malice?
1) Test
Actual malice was defined by the Supreme Court in New York Times v. Sullivan as: a) Knowledge that the statement was false, or b) Reckless disregard as to its truth or falsity.- What Constitutes “Knowledge or Reckless Falsity”?
- Alteration of Quotation as Actual Malice
- Matters of Public Concern—At Least Negligence Required
- A statement by a credit bureau to a customer is qualifiedly privileged.
- A statement made by a former employer to a prospective employer about a job applicant is qualifiedly privileged.
2. Intrusion on Plaintiff’s Affairs or Seclusion
a. Prima Facie Case
To establish a prima facie case for invasion of privacy—intrusion on the plaintiff’s affairs or seclusion—the following elements must be proved:- Act of prying or intruding on the affairs or seclusion of the plaintiff by the defendant;
- The intrusion is something that would be highly offensive to a reasonable person; and
- The thing to which there is an intrusion or prying is “private.”
b. Invasion of Plaintiff’s Private Affairs or Seclusion
For liability to attach, there must be an invasion of the plaintiff’s private affairs or seclusion; e.g., defendant puts a microphone in plaintiff’s bedroom.c. Intrusion Highly Offensive to a Reasonable Person
For liability to attach, the intrusion by defendant must be something that would be highly offensive to a reasonable person.d. Intrusion Must Be into Something “Private”
For liability to attach, the intrusion by defendant must be into something within the plaintiff’s own private domain. Thus, for example, taking pictures of a person in a public place is not actionable.3. Publication of Facts Placing Plaintiff in False Light
a. Prima Facie Case
To establish a prima facie case for invasion of privacy—publication by defendant of facts placing plaintiff in a false light—the following elements must be proved:- Publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye;
- The “false light” is something that would be highly offensive to a reasonable person under the circumstances; and
- Actual malice on the part of defendant where the published matter is in the public interest.
b. Publication or Public Disclosure
For liability to attach, there must be publicity concerning the “false light” facts; this requires more than “publication” in the defamation sense.c. What Is “False Light”?
A fact will be deemed to present plaintiff in a false light if it attributes to him:- Views that he does not hold, or
- Actions that he did not take.
d. Highly Offensive to Reasonable Person
To be actionable, this “false light” must be something that would be highly offensive to a reasonable person under the circumstances.e. Actual Malice Necessary Where Matter of Public Interest
In Time, Inc. v. Hill, 385 U.S. 374 (1967), a case involving this particular invasion of privacy branch, the Supreme Court held that the First Amendment prohibits recovery for invasion of privacy in cases where the published matter is of public interest, unless the plaintiff establishes that the defendant acted with actual malice (i.e., knowledge of falsity or reckless disregard for the truth). After Gertz and Dun & Bradstreet (discussed supra under Defamation), the Supreme Court may be expected to give the states a slightly larger scope in which to protect privacy where a public figure is not involved. Thus, where the public interest in the information is not overriding and where the risks to the privacy interests of the private person are clear on the face of the material to a reasonably prudent publisher, the Supreme Court may choose in the future to permit an action in privacy without proof of actual malice. However, at least in public figure cases, the Time, Inc. v. Hill requirement of actual malice still holds. [See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)]4. Public Disclosure of Private Facts About Plaintiff
a. Prima Facie Case
To establish a prima facie case for invasion of privacy—public disclosure of private facts about plaintiff—the following elements must be proved:- Publication or public disclosure by defendant of private information about the plaintiff; and
- The matter made public is such that its disclosure would be highly offensive to a reasonable person.
- The tort typically involves damage to or dispossession of the plaintiff’s chattel
- The defendant need not have intended to commit a trespass to the chattels, only to do the act that causes interference with chattel
- If the damage to the chattel is serious, conversion may be more appropriate
- Conversion
- Defined: An intentional act by the defendant that causes a serious interference with the plaintiff’s right of possession in a chattel
- The defendant need not have intended a conversion, only to do the act that constitutes a conversion
- The interference with the chattel is so serious as to require the defendant to pay the full value of the chattel (in effect, a forced sale of the chattel)
B. Consider Transferred Intent
- Intent will transfer from the intended tort to the committed tort, or from the intended victim to the actual victim
- Both the tort intended and the tort committed must be battery, assault, false imprisonment, trespass to land, or trespass to chattels
C. Apply Relevant Defenses
- Consent
- Consent may be either express or implied (apparent or implied by law)
- The plaintiff must have capacity to consent and the defendant must not exceed the bounds of the consent
- Self-defense, defense of others, defense of property
- The defendant must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property
- Only reasonable force may be used
- Deadly force is permitted if reasonably believed to be necessary to prevent serious bodily injury
- Deadly force is never permitted to defend only property
- The shopkeeper’s privilege permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods
- Necessity
- A defendant whose property tort was justified by a public necessity has an absolute defense
- If justified only by a private necessity, the defense is qualified (the defendant must pay for any damage caused)
- This privilege trumps a property owner’s right to defend his property
II. NEGLIGENCE
A. Elements of the Prima Facie Case
- The defendant owes a duty of care to conform to a specific standard of conduct
- The defendant breached that duty
- The breach of duty was the actual and proximate cause of the plaintiff’s injury
- The plaintiff suffered damages to person or property
B. Standards of Care
- The general standard of care is that of a reasonably prudent person (average mental ability but the same physical characteristics as the defendant)
- Professionals must exercise the knowledge and skill of a member of the profession in good standing
- Children must conform to standard of care of a child of like age, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)
- A landowner’s standard of care under traditional rules usually depends on the status of the person injured on the property
- Trespassers
- The landowner owes no duty to undiscovered trespassers
- For discovered and anticipated trespassers, the landowner owes a duty to warn of or make safe known highly dangerous artificial conditions if not obvious to the trespasser
- Licensees
- Licensees are those who come onto the land with express or implied permission but for their own purpose (includes social guests)
- The landowner’s duty is the same as for discovered trespassers except that it applies to all dangerous artificial and natural conditions
- Invitees
- Invitees are those entering as members of the public or for a purpose connected to the business of the landowner
- The landowner’s duty is the same as for licensees but with the additional duty to reasonably inspect for dangerous conditions
- Note that the ordinary reasonable care standard applies for active operations on the property and for conditions on the land that injure children (the “attractive nuisance” doctrine)
- Trespassers
- A criminal statute may serve to establish a specific standard of care in place of the general standard of ordinary care if:
- The plaintiff is within the class that the statute was intended to protect
- The statute was designed to prevent the type of harm suffered
- Negligent infliction of emotional distress
- General basis of liability: The defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result
- The plaintiff must be within the “zone of danger” and ordinarily must suffer physical symptoms from the distress
- General basis of liability: The defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result
- Existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff;
- Defendant’s knowledge of the relationship or expectancy;
- Intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and
- Damage to plaintiff.
- Institution of criminal proceedings against plaintiff;
- Termination favorable to plaintiff;
- Absence of probable cause for prosecution;
- Improper purpose of defendant (i.e., malice); and
- Damages.
- Standard elements of negligence prima facie case apply (see II.A., supra)
- Breach of duty is shown by negligent conduct by the defendant that leads to supplying a defective product to the plaintiff
- Liability arises from supplying a defective product even if the defendant exercised due care and was not negligent
- Even a retailer who had no opportunity to inspect the product may be liable as a commercial supplier
- The defect must have existed when the product left the defendant’s control
- A nuisance is a type of harm that may be based on intent, negligence, or strict liability
- A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property
- A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community
- The usual remedy is damages, but injunctive relief may be available for a continuing nuisance
- One who has just moved onto land adjacent to a nuisance may bring a nuisance action; in other words, “coming to the nuisance” is not a defense
- The defendant may be vicariously liable for the tort of another based on the relationship between the defendant and the tortfeasor
- Employer-employee (respondeat superior)—the employer is liable for torts of an employee that occur within the scope of the employment relationship
-
Principal-independent contractor—the general rule is that a principal is not vicariously liable for the torts of an independent contractor, but broad exceptions exist:
- The independent contractor is engaged in inherently dangerous activities
- The principal’s duty cannot be delegated because of public policy considerations
-
Automobile owner-driver—an automobile owner is not vicariously liable for the negligence of the driver unless the state has adopted:
- A permissive use statute (imposing liability for the torts of anyone driving with permission), or
- The family purpose doctrine (imposing liability for the torts of a family member driving with permission)
- Parent-child—a parent is not vicariously liable for a child’s torts at common law (but statutes in many states impose limited liability for the child’s intentional torts)
- Note that, regardless of whether vicarious liability applies, the defendant can be liable for his own negligence, e.g., negligence in hiring the employee, supervising the child, or entrusting the car to the driver
- Under the rule of joint and several liability, when two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for the injury
- The plaintiff can recover his entire damages from any one of the tortfeasors
- Many states have abolished the rule for (1) those tortfeasors less at fault than the plaintiff, or (2) all tortfeasors for noneconomic damages
- If joint and several liability applies, contribution allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault
- Survival statutes preserve a victim’s cause of action after his death, except for torts involving intangible personal interests (e.g., defamation)
- Wrongful death statutes permit a personal representative or surviving spouse to recover damages from a tortfeasor for loss of the decedent’s support and companionship
- Intra-family tort immunities—the rule that one family member could not sue another in tort for personal injury is abolished in most states, except that children generally cannot sue their parents for their exercise of parental supervision
- Governmental immunities—governments generally have waived their sovereign immunity from suit for ministerial acts (acts performed at the operational level that do not require the exercise of judgment) but have not waived immunity for discretionary acts (acts taking place at the planning or decision-making level)
- Misrepresentation made by defendant;
- Scienter;
- An intent to induce plaintiff’s reliance on the misrepresentation;
- Causation (i.e., actual reliance on the misrepresentation);
- Justifiable reliance by plaintiff on the misrepresentation; and
- Damages.
- Defendant stands in such a fiduciary relationship to plaintiff as would call for a duty of disclosure.
- Defendant selling real property knows that plaintiff is unaware of, and cannot reasonably discover, material information about the transaction (e.g., builder does not tell buyer that the house was built on a landfill).
- Where defendant speaks and her utterance deceives plaintiff, she will be under a duty to inform plaintiff of the true facts.
- Misrepresentation made by defendant in a business or professional capacity;
- Breach of duty toward particular plaintiff;
- Causation;
- Justifiable reliance by plaintiff upon the misrepresentation; and
- Damages.
- Exception: The defendant breaches a duty to a bystander not in the zone of danger who (1) is closely related to the injured person, (2) was present at the scene of the injury, and (3) personally observed or perceived the event
- Exception: A relationship exists between the defendant and the plaintiff under which the defendant’s negligence has great potential to directly cause emotional distress (e.g., hospital erroneously reports death of plaintiff’s family member).
C. Breach of Duty
- Whether the defendant breached the applicable duty of care is a question for the trier of fact
- Under res ipsa loquitur, the fact that an injury occurred may create an inference that the defendant breached his duty. The requirements:
- The accident causing the injury is a type that would not have occurred absent negligence
- The negligence is attributable to the defendant (usually because the defendant is in exclusive control of the instrumentality causing the injury)
D. Causation
- Actual cause
- Usually established by the “but for” test—an act is the actual cause of an injury when it would not have occurred but for the act
- Merged causes—when two acts bring about an injury and either one alone would have sufficed, either of the acts is an actual cause of the injury if it was a “substantial factor” in bringing it about
- Unascertainable causes—when two acts were negligent but it is not clear which was the actual cause of the injury, the burden shifts to each of the negligent actors to show that his negligent act was not the actual cause
- Proximate cause
- Limits liability for unforeseeable consequences of the defendant’s actions
- The defendant is liable for all harmful results that are the normal incidents of and within the increased risk from the defendant’s actions
- Indirect cause cases: An intervening force occurs after the defendant’s negligent act and combines with it to cause the injury
- Foreseeable intervening forces do not cut off the defendant’s liability for the consequences of his negligent act
E. Damages
- The plaintiff must show actual harm or injury to complete the prima facie case
- The plaintiff can recover economic damages (e.g., medical expenses) and noneconomic damages (e.g., pain and suffering)
- The extent or severity of the harm need not have been foreseen (the tortfeasor takes his victim as he find him)
F. Defenses to Negligence
- Contributory negligence—the standard of care required of a plaintiff to avoid injury is judged using a reasonable person standard
- Comparative negligence—almost all states have rejected the rule that a plaintiff’s contributory negligence will totally bar her recovery
- In a pure comparative negligence state, a negligent plaintiff can recover damages reduced by the percentage of her fault even if she was primarily at fault
- In a partial comparative negligence state, a negligent plaintiff can recover reduced damages as long as her fault is not above a certain level (usually 50%); if it is, she is barred from recovering
- Assumption of risk—arises when the plaintiff is aware of a risk and voluntarily assumes it (either expressly or impliedly)
- In comparative negligence states, most implied assumption of risk situations are analyzed under comparative negligence rules
III. STRICT LIABILITY
Imposes liability on a defendant for the plaintiff’s injury even though the defendant was not negligentA. Situations Where Strict Liability Is Imposed
- On the owner of a wild animal or an abnormally dangerous domestic animal for injuries caused by the animal
- On one engaged in an abnormally dangerous activity—an activity that creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors
B. Extent of Liability
- The harm must result from the kind of danger that makes the animal or activity abnormally dangerous
- Most states apply their comparative fault rules to strict liability cases
IV. PRODUCTS LIABILITY
A. General Principles
- Liability for defective products may be brought under various theories of liability: intent, negligence, strict liability, implied warranties of merchantability and fitness for a particular purpose, and representation theories
- Liability arises when a commercial supplier supplies a product in a defective condition unreasonably dangerous to users
- A product has a manufacturing defect when it varies from the other products in the manufacturing process and is dangerous beyond the expectation of the ordinary consumer
- A product has a design defect when all products of the line have dangerous characteristics because of mechanical features or packaging
- defamatory (i.e., does it tend to adversely affect a person’s reputation)?
- “of or concerning” the plaintiff (in the view of a reasonable listener or reader)? and
- “published” (i.e., has it been intentionally or negligently communicated to a third person)?
CMR ChartAPPROACH TO EXAMSTORTSIN A NUTSHELL: A tort is a civil wrong committed against another. A tort may arise from the defendant’s intentional conduct, negligent conduct, or conduct that creates liability in the absence of fault (strict liability torts). A typical Torts exam question will involve multiple torts committed by and against multiple parties. For each potential tort, first identify the prima facie case elements of the tort and apply the elements to the facts provided. For those torts for which the prima facie case is established, consider any defenses that are supported by the facts. Finally, consider any supplemental rules that may apply, typically involving multiple parties (e.g., vicarious liability and joint tortfeasor rules).
I. INTENTIONAL TORTSA. Identify the Tort
- Battery
- a. Defined: A harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant
- b. “Person” includes things connected to the person
- c. Contact is deemed “offensive” if the plaintiff has not expressly or impliedly consented to it
- Assault
- a. Defined: Intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person
- b. “Apprehension” need not be fear
- c. Words alone generally are not enough
- False imprisonment
- a. Defined: An intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area
- b. Confinement or restraint includes threats of force, false arrests, and failure to provide a means of escape when under a duty to do so
- Intentional infliction of emotional distress
- a. Defined: Intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress
- b. Physical injuries are not required, only severe emotional distress
- Trespass to land
- a. Defined: An intentional act by the defendant that causes a physical invasion of the plaintiff’s real property
- b. The defendant need not have intended to commit a trespass, only to do the act of entering onto land
- Trespass to chattels
- a. Defined: An intentional act by the defendant that causes an interference with the plaintiff’s right of possession in a chattel, resulting in damages
| Status of Entrant | Duties Owed | ||
|---|---|---|---|
| Artificial Conditions | Natural Conditions | Active Operations | |
| Undiscovered Trespasser | No duty | No duty | No duty |
| Discovered or Anticipated Trespasser | Duty to warn of or make safe known conditions if nonobvious and highly dangerous | No duty | Duty of reasonable care |
| Licensee (under traditional rule)—includes social guest | Duty to warn of or make safe known conditions if nonobvious and dangerous | Duty to warn of or make safe known conditions if nonobvious and dangerous | Duty of reasonable care |
| Invitee (under traditional rule)—includes member of public, business visitor | Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe | Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe | Duty of reasonable care |
| Intentional | Negligent | |
|---|---|---|
| Conduct Required | Extreme and outrageous conduct by defendant | Subjecting plaintiff to threat of physical impact or severe emotional distress likely to cause physical symptoms |
| Fault Required | Intent to cause severe emotional distress or recklessness as to the effect of conduct | Negligence in creating risk of physical injury to plaintiff |
| Causation and Damages | Defendant’s conduct must cause severe emotional distress | Defendant’s conduct generally must cause physical symptoms from the distress (growing minority of states drop this requirement) |
| Bystander Recovery | (1) Plaintiff bystander must be present when the conduct occurs; (2) the distress must result in bodily harm, or plaintiff must be a close relative of the third party; and (3) defendant must know these facts (or have intent to cause plaintiff distress) | Plaintiff bystander must (1) be closely related to the injured person, (2) be present at the scene, and (3) observe or perceive the injury |
- defamatory (i.e., does it tend to adversely affect a person’s reputation)?
- “of or concerning” the plaintiff (in the view of a reasonable listener or reader)? and
- “published” (i.e., has it been intentionally or negligently communicated to a third person)?
VII. DEFAMATION AND OTHER HARMS TO ECONOMIC AND DIGNITARY INTERESTS
A. Defamation
- Apply the common law prima facie case: Defamatory language concerning the plaintiff published to a third person that causes damage to the plaintiff’s reputation
- Damage will be presumed if the defamation is libel (in writing or other permanent form) or if it is slander (spoken) within one of the four per se categories (business or profession, loathsome disease, crime of moral turpitude, or serious sexual misconduct (traditionally, unchastity of a woman); otherwise, special (pecuniary) damages must be shown
- Apply the constitutional rules if the plaintiff is a public official or figure, or if the defamation involves a matter of public concern:
- The plaintiff must prove that the statement was false
- Public officials or figures must prove “actual malice,” i.e., that the statement was made with knowledge of its falsity or reckless disregard of its truth or falsity
- Private figures suing on a matter of public concern must show (1) at least negligence as to truth or falsity, and (2) actual injury (no presumed damages)
- Consider any applicable defenses
- Truth (when the constitutional requirement of proof of falsity does not apply)
- Absolute privilege for statements in judicial, legislative, or executive proceedings
- Qualified privilege for matters in the interest of the publisher and/or the recipient (may be lost if the statement is outside the scope of the privilege or made with actual malice)
B. Invasion of Privacy—Four Kinds of Wrongs:
-
Appropriation of the plaintiff’s picture or name
- Unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage
- Limited to the advertisement or promotion of products or services
-
Intrusion on the plaintiff’s affairs or seclusion
- An act of prying or intruding on the plaintiff’s private affairs or seclusion that would be highly offensive to a reasonable person
-
Publication of facts placing the plaintiff in a false light
- The publication of facts about the plaintiff putting her in a false light in the public eye in a way that would be highly offensive to a reasonable person
- Actual malice must be shown if the publication is in the public interest
-
Public disclosure of private facts about the plaintiff
- The public disclosure of private information about the plaintiff such that
- the disclosure would be highly offensive to a reasonable person
- Public disclosure requires publicity, not just publication to a few people
- Defenses—consent and absolute or qualified privileges
C. Misrepresentation
- Intentional misrepresentation (fraud)
- Defined: Misrepresentation by the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation (actual reliance on misrepresentation), justifiable reliance, and damages
- The defendant generally has no duty to disclose material facts but may be liable for active concealment
- Negligent misrepresentation
- Defined: Misrepresentation by the defendant in a business or professional capacity, breach of duty to the plaintiff, causation (actual reliance on misrepresentation), justifiable reliance, and damages
- The defendant owes a duty only to those to whom the misrepresentation was directed or those who the defendant knew would rely on it
D. Interference with Business Relations
- Defined: A valid contractual relationship or business expectancy of the plaintiff and a third party, the defendant’s knowledge of the relationship, intentional interference by the defendant inducing a breach or termination of the relationship, and damages
- The defendant’s conduct may be privileged if it is a proper attempt to obtain business or protect the defendant’s interests
E. Malicious Prosecution
- Defined: Initiating a criminal proceeding against the plaintiff ending in plaintiff’s favor, absence of probable cause for the prosecution, improper purpose (malice), and damages