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Intentional Torts – Checklist
Intent Battery Assault False Imprisonment Intentional Infliction of Emotional Distress Trespass to Land Trespass To Chattels Conversion
Intentional Torts - Intent
Specific Intent: Conscious desires to cause the consequences of his act, knowledge that the result will occur and volitional act. Transferred Intent: can be transferred between ns Can be transferred between 5 torts: assault, battery, false imprisonment, trespass to chattel and land Substantial Certainty: Δ knows w/ substantial certainty conduct will cause the result Insane people - Liable. Child/Mentally Incapacitated  - maturity, experience and training
Intentional Torts – Battery
harmful or offensive touching to another person, without consent or privilege.   direct or indirect contact anything connected to Π is sufficient Look for trespass to chattel when they grab of the body (purse)
Intentional Torts – Assault
Placing another in reasonable apprehension of imminent harmful or offensive contact to another without consent or privilege   Conditional threat negates apprehension Reasonable person test, not fear just apprehension, actual apprehension. words alone are not enough need awareness and future threats
Intentional Torts – False Imprisonment
Intentional physical or psychological confinement of another within fixed boundaries for a period of time, without consent or privilege.   invalid use of legal authority is sufficient, police words are ok. Π must be aware of the confinement, can be unconscious and recover there must be no reasonable means of escape Future threats are not valid
Intentional Torts – Intentional Infliction of Emotional Distress
Calculated to cause and extreme and outrageous conduct that results in severe emotional distress

conduct can be intentional or reckless look for conduct that is continuous, directed at a certain class of Π, or committed by a certain type of Δ “Bystander”: can recover if present when injury occurred, close relative of injured person, and A knew this, must show intent to cause harm Children, elder and pregnant acts on sensitivity
Intentional Torts – Trespass to Land
intentional entry upon the land of another without consent or privilege.   invasion can be by a person or object (not intangible matter- see nuisance) real property includes reasonable amount of airspace and subterranean space A need only intend to enter the land - mistake is no defense If asked to move items and not move items from property Must have actual or right to immediate possession
Intentional Torts – Trespass To Chattels
intentional interference w/ another's right of possession w/o consent or privilege   interference can be intermeddling (damaging) or dispossession remedies: Diminution in value or cost of repair and/or reasonable rental value Mistake is no defense
Intentional Torts – Conversion
Intentional exercise of wrongful dominion and control over the chattel of another without consent or privilege   a)     More than interference b)     Look for more than one conversion c)     Innocent converter even receiving stolen goods d)     Remidies - Nature of judgment amounts to forced sale - defendant required to pay full market value of chattel. Replevin and Detinue
Defenses to Intentional Torts – Checklist
Consent Self Defense Defense of Others Defense of Property Necessity Privilege of Arrest Discipline Legal Authority Reentry of Land Wrongfully Held Recapture of Chattel Wrongfully Held Entry to Abate a Nuisance
Defenses to Intentional Torts – Consent
consent must be valid (person must be competent); Δ must not exceed the scope of the consent; express or implied
Defenses to Intentional Torts – Self Defense
reasonably believe being or about to be attacked (reasonable mistake OK); can use reasonably force to protect against injury   Can use deadly force if believes life is in danger.   No privilege if danger passed
Defenses to Intentional Torts – Defense of Others
reasonably believe that the other person could have used force to protect himself (reasonable mistake OK); can use force that is reasonably necessary to protect oneself
Defenses to Intentional Torts – Defense of Property

1.         can use reasonable force to prevent commission of a tort


a.        defense only available before and during commission of the tort (hot pursuit) b.        must first request to desist or leave, unless it would be futile c.        privilege supersedes the defense d.   deadly force is not reasonable
Defenses to Intentional Torts – Necessity
Precludes defendant from being a tortfeasor, applies only to property torts and can be either public (no liability) or private (actual damages). Public – Fire, Flood Earthqke. Private – Snw Str.
Defenses to Intentional Torts – Privilege of Arrest
Shopkeepers may have the privilege to reasonably detain individuals whom they reasonably believe to be in possession of “shoplifted” goods.
Defenses to Intentional Torts – Discipline
Parent or teacher (in loco parentis) may use reasonable force in disciplining children.
Defenses to Intentional Torts – Legal Authority
Felony - Police officer - reasonable grounds of belief felony committed even if no felony. Misdemeanor - Police - breach of peace and believes the person committed. Felony - Private Citizen - reasonable grounds to detain if felony has been committed. Misdemeanor - Private Citizen - breach of peace must be committed before detaining
Defenses to Intentional Torts – Reentry of Land Wrongfully Held
Majority - No privilege, Minority - reasonable force to recover
Defenses to Intentional Torts – Recapture of Chattel Wrongfully Held
Reasonable force as long as entitled to chattel, demand must be made and fresh pursuit.
Defenses to Intentional Torts – Entry to Abate a Nuisance
Privileged to invade land or chatter of another to stop a private nuisance created or maintained on the land or chattel. D must be owner, must make demand, must enter reasonable time and manner.
Negligence - Checklist
Definition Special Duty General Duty Negligent Infliction of Emotional Distress Breach Actual Causation Proximate Causation Damages Defenses
Negligence -  Definition
Defendant may be liable to plaintiff for Negligence if it can be determined that the defendant owed a duty of care to the plaintiff, defendant breached the duty, and the plaintiff suffered damages which were actually and proximately caused by defendant’s breach.
Negligence – Special Duty
Violation of Statue - Intent of legislature, Class of persons to be protected, Type of Injury suffered that is created by civil liability or criminal statue.   Negligence Per Se:   a)    Only when: Π is member of class of person that statute is trying to protect and risk is within class of risk that statute is trying to protect b)    Exceptions:

compliance is more dangerous than violation or compliance is impossible
Negligence – Special Duty
Guest Statue - If P is a guest must show gross negligence recklessness on the part of the driver in order to recover. Omission to Act - No duty to aid another in emergency unless: Injured by D, Special relationship (wife, child), Statutory Duty to act.   No duty to control 3rd party acts. No liability for failure to perform gratuitous promise. Gratuitous Promise - if started to help then cannot leave in worse shape.
Negligence – Special Duty
Landowner-occupier Duties owed to persons outside land - 1) No duty as to natural conditions, exceptions - Urban areas (tress hanging over). Minority Reasonable care. 2) No duty artificial conditions except - condition abates adjacent land and has duty maintain and reasonably inspect. Duties coming onto land - Trespasser - Undiscovered - No duty; Trespasser - Known/Anticipated - D must use due care if he knows of trespasser is present. If he knows must post signs and give notice and warnings. Children - Artificial condition creates unreasonable risk of harm, Knew or should have known that children are likely to trespass, Children unable to recognize danger  because of youth, Utility of maintaining the condition vs. eliminating risk.  Licensee - Those entering with permission but not for the purpose for which the property is maintained. (social guest, fire fighters, police, officials). Ordinary care - warn of known danger or make safe. Invitee - Those entering with permission for which the land is maintained.  Public - enter land for the purpose for which land is open (store). Business - enter land for business dealings with occupier.  Ordinary care - warn of known danger or make safe.
Negligence – Special Duty
Duties owed by lessors of land - CL landlord owes no duty to person coming onto land with the consent of lessee.  Can be sued if landlord knew of dangerous conditions on property, Duty to warn or repair conditions dangerous to persons outside the premises.
Negligence – General Duty
Duty created when D does an act which creates a reasonably foreseeable risk of harm Standard of care: reasonable person under the same or similar circumstances Custom is not considered a standard but failure to comply with customs may be negligence Adults with disabilities - reasonable person with their disability. Mental Disabilities - No allowance,  Retarded adults reasonably in light of diminished capacities unless engaged in dangerous adult activities. Professionals: knowledge and skill of member of the profession in good standing in similar communities Children: child of like age, education, experience and intelligence, 0-7 presumption against negligence, 7 - 14 rebuttal presumtion, 14 over adult standard. Common carriers/innkeepers: higher degree of care for passengers/guests Vehicle driver: only owes duty of ordinary care to passenger To whom is duty of care owed - Majority - Foreseeable P in foreseeable zone danger, Minority - General duty owed to everyone.
Negligence - Negligent Infliction of Emotional Distress
In addition to duty and breach, must show: Non By Standard - Foreseeable risk of physical injury (impact/threat) that might foreseeable result in emotional distress.  Majority - Must be in zone of danger. Exceptions are mishandled corpse. Erroneous Telegram. For By-Stander to recover: Π present at scene when family member was hurt.
Negligence - Breach
Breach of duty occurs when the defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff. 4 ways to show Breach Direct – Failed to meet standard, exposing others to unreasonable risk of harm Circumstantial - showing the evidence, inference. Violation of Statue Res Ipsa Loquitor - thing speaks for itself Accident does not normally occur absent negligence More likely than not D was responsible (control is a factor here) P did not Contribute to his own injury Effect Gets you to the Injury Inference of Negligence
Negligence – Actual Causation
Actual: “But For” test;  Concurrent - Separate negligent acts occur and P injured but for the concurrence (both D's laible). Joint Tortfeasors - Several defendants engaged in negligent conduct, all held liable  even if one caused injury. Successive tortfeasors - Act independently and have caused successive impacts.   Substantial Factor test (for joint causes); Where several causes bring about a injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is cause in fact if it was a substantial factor in causing the injury. Alternative Liability (burden shifting) - two negligent defendants where only one of the two was responsible, the other is not, but it is unknown which defendant caused the injury.
Negligence – Proximate Causation
“Foreseeability” test Conduct will be deemed to be the proximate cause of harm if the harm was a foreseeable result of the conduct, and if the harm was not brought about by an extraordinary or unforeseeable sequence of events. Direct causes – uninterrupted chain of events, no intervening cause,  Foreseeable results. An eggshell thinned skull case (defendant takes the person of plaintiff as he finds it) is not an unforeseeable result case.  Indirect causes - An indirect cause is one where after the first negligent act but before the injury there is an intervening affirmative act on the part of a third party or act of God.  If the intervening act is foreseeable then the defendant will be held liable. Dependent – Rescue, Reaction (horse kicking), Checking (Doctor), Escape. Foreseeable              Liability yes. Normal; Independent -  Windstorm unforeseeable. If Independent act is foreseeable then liability if not then no. Abnormal; Exception:  In an Indirect Cause case, if the intervening act was an Unforeseeable intentional tort or crime, let the first defendant go even though the result was foreseeable.
Negligence – Damages -
General Damages Past, present and future pain and suffering Special Damages - Past, present, future economic losses, medical bills, loss of wages and profits.  Pure economic not allowed. Personal Injury - Plaintiff is to be compensated for all damages (past, present and future), both special and general.  Property Damages Measure of damage is reasonable cost of repair or, if property nearly destroyed, fair market value at time of accident.  Punitive Damages Plaintiff may recover punitive damages if defendant’s conduct is wanton, and willful, reckless or malicious. Non-recoverable Items Include interest from date of damage in personal injury action and attorney’s fees.
Negligence – Damages -
Duty to Mitigate - Plaintiff has duty to take reasonable steps to mitigate damages (seek appropriate treatment). Collateral Source Rule - Damages are not reduced just because plaintiff received benefits from other sources, eg health insurance. Loss of Consortium - requires loss of companionship and intercourse between wife and husband. Minority to parents/child and grandparents. Multiple Defendants - two or more joint tortfeasors liable for entire amount. Contributions - Each joint tortfeasors liable for other tortfeasors proportionate share if one torfeasor pays full judgment. Indemnity - One secondary liable is entitled to indemnification against defendant primarily liable. Satisfaction - Recovery for full sum from one joint tortfeasor bars recovery from other torfeasor.  Release - CL release one release all. Majority - Release one does not release all.
Negligence - Defenses
Contributory Negligence: Contributory negligence is negligence on the part of the plaintiff that contributes to his or her injuries.  Standard of care is same as for ordinary negligence. Comparative Negligence: Compares the Negligence of plaintiff and defendant solely in terms if blameworthiness and apportions the damages accordingly. Pure - recover no matter how great the negligence. Partial - Denied if equal or more than defendant. “Last Clear Chance” doctrine – Here, even after contributory negligence by plaintiff, if the defendant had a “last clear chance” to avoid the accident and because defendant did not take the “last clear chance”, plaintiff should be relieved of the consequences of his earlier contributory negligence. Assumption of Risk: P voluntarily proceeded having knowledge and comprehension of the risk, knowledge and appreciates the danger. Rescuer never assumes risk. (express or implied)
Survival Statute - CL - No cause of action. ML - Allow cause for injuries to property and person to survive death for pain, suffering, medical, lost wages. Same as PI but cut off at death. Victim dies instantaneously no pain and suffering. Defamation and ect not available. Wrongful Death (by statute)  - Same as above but brought by estate.  
Statue of Limitations - dates give on exam Immunities Intra-family - can sue spouse for damage of property and personal injuries that occurred before the marriage. Government: Allowed if acting as private actor (running airport), discretionary acts as long as good faith. State and local unless they consent.  Charitable - can bring if public function and have insurance
Strict Liability – Checklist
Animals Ultra Hazardous Activity Inherently Dangerous Activity
Strict Liability – Animals
Animals:  Domesticated - Defendant has knowledge of the danger propensities of the animal; one free bite and then put on notice. Bulls would not count to encourage keeping them. Wild - Strictly liable for harm to another animal, chattel or person even if D used the utmost care. Liability to only dangerous propensities. Zoo - look for negligence. trespassing cattle - strict for trespass and damages. Injuries to third party - Licensee warning or notice. Trespassers - warning if dangerous animal.    Duty - Owed to Foreseeable plaintiff from the kind of danger anticipated Breach - breached an absolute duty to make sage. Actual and Proximate Causation Damages - must be more than economic recovery. Defenses - Assumption of Risk and Contributory and Comparative
Strict Liability – Ultra Hazardous Activity
Ultrahazardous Conditions:  One who maintains an abnormally dangerous  condition or activity on his or her premises, or engages in an activity that involves a high risk of harm to the persons or property of others may liable for the harm even if it causes reasonable care to prevent the harm. (1) risk of serious harm; (2) cannot be performed without such risk; (3) not commonly engaged in that community, (4) Balance – danger vs. value to community.   Duty - Owed to Foreseeable plaintiff from the kind of danger anticipated Breach - breached an absolute duty to make sage. Actual and Proximate Causation Damages - must be more than economic recovery. Defenses - Assumption of Risk and Contributory and Comparative
Strict Liability – Inherently Dangerous Activity
Inherently Dangerous Activity: Ultra-hazardous activity triggers vicarious liability (i.e., respondeat superior)+independent Contractor.   Duty - Owed to Foreseeable plaintiff from the kind of danger anticipated Breach - breached an absolute duty to make sage. Actual and Proximate Causation Damages - must be more than economic recovery. Defenses - Assumption of Risk and Contributory and Comparative
Vicarious Liability
Employer is vicariously liable for the torts of an employee  that occur within the course and scope of employment. Look Frolic way out of scope and detour short time but can be foreseeable. Is it furthering the Employers business. Independent contractors (principal not liable unless inherently dangerous activity or duty is non-delegable) Partners/joint ventures (liable for conduct committed in scope and course of partnership/venture); Automobile owner not liable for conduct of driver (unless imposed by “Family Car” lends to family or “Permissive Use” doctrine, lends to person who commits a tort) Parent not liable for conduct of child unless parent knows of children's wrongdoings, or fails to exercise proper control (can be liable for negligent supervision of child) Tavern keepers (Dramshop Acts) Liability for negligent selection/entrustment/supervision
Product Liability – Checklist
Intentional Negligent Product Liability Warranty Strict Liability in Product Liability Misrepresentation Intent Battery
Product Liability – Intentional
P will have to establish that manufacturer/distributor/supplier knew that the product would cause harm.
Product Liability – Negligent Product Liability
Manufacturing Defect - product not manufactured for the intended purpose; Design Defect - product designed as intended but creates unreasonable danger to consumer , Warning Defect - not proper warning or notice to consumer of risks. Duty - Duty inspect, discover and correct defects which a reasonable inspect would reveal. Breach - Defective product failed to meet the ordinary commercial expectations of the average reasonable consumer. 3 types  Manufacturer Defect, Defect in Design, Defective Warning. Causation - Actual and Proximate, Argue the use, but if foreseeable then still the cause. Damages - Person and Property. Punitive if reckless. Defenses - Contribution, Comparative, Assumption of Risk. NO MISUSE
Product Liability – Warranty
Express Warranty- Statement of fact or promise by a commercial seller creates an express warranty that becomes part of the basis of the bargain.   Implied  Warranty - Implied in law from seller to buyer in which a contract must exist  between each party.   Implied Warranty of Merchantability Goods of fair & average quality; fit for normal us. Look to similar products on market, fit for intended purpose with emphasis on safety   Implied Warranty of Fitness for Intended Use Product must be fit for its intended use and Buyer must rely on seller's special knowledge and skills   Causation Damages Defenses - Misuse a defense, with other defenses
Product Liability – Strict Liability in Product Liability
A commercial seller (i.e., one engaged in the business of selling or distributing products) who places a defective product in the stream of commerce is strictly liable in tort for injuries to persons or properly caused by a foreseeable use of the product.   Sold by a commercial seller and be unreasonably dangerous   Existence of defect when product left Δ’s control: inferred if product moved through normal distribution channels   Causation Damages Defenses - Misuse a defense, with other defenses
Product Liability – Misrepresentation
Commercial seller is liable for material misrepresentations of fact. Justifiable Reliance.
Product Liability – Intent Battery
Commercial seller is liable for injuries caused by an unsafe product if Δ intended the consequences.   Must show D intended the consequences (substantial likelihood test)
Cross Over Torts – Checklist
Nuisance Misrepresentation Negligent Misrepresentation Injurious False Hood - Trade Libel Interference with Business Relations  Interference with Business Relations Interference with Prospective Advantage Malicious Prosecution Abuse of Process Wrongful Civil Proceedings
Cross Over Torts - Nuisance
Private: Unreasonable interference with the possessory interest of an individual in the use or enjoyment of his land. Substantial (offensive to average person in community), Unreasonable (balance severity with harm) interference with use or enjoyment (not possession) of private property Public: Unreasonable interference with the general public: health, safety, or property rights of the community Remedies: damages; injunction; abatement by self-help (for private nuisance; after notice) Defenses: legislative authority; conduct of others; “coming to the nuisance” (for purpose of bringing harassing lawsuit)
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