TORTS
Checklist for every torts question: • Who is the π ? trespasser , user of product, …. ect
• Who is the defendant/who are the defendants? Who are the responsible parties? manufacturere, LL, employer… ect
• What is the π ’s injury or injuries? Harm to person
• What legal theory/theories can the π assert? intentional tort, • Make sure that it is a torts question.
INTENTIONAL TORTS
Elements of Intentional Torts (OL I. A.)
I. Voluntary Act Something that is Conscious and willedA. Definition: A ∆ is not liable in tort for involuntary acts. ( reflex, unconsciousness)
EXAMPLE: If Tom pushes Dirk into Priscilla and Priscilla sues Dirk, there is no liability for an intentional tort because Dirk did not engage in any voluntary act.
EXAMPLE: Dina, during a sudden epileptic seizure, hits Poindexter. While Dina did not intend the harm, there is also no liability because there was no voluntary act by Dina.
II. Intent * Most Important*
A. For most intentional torts, intent is established if the defendant either:
1. ∆. desired consequences or had the purpose to bring about those consequences 2. π to show that Def. knew that those consequences were substantially certain to occur B. Incompetency
1. IF ∆ is mentally incompetent or Minor they can sill possess the intent to commit an intentional tort, but incompetency may affect whether such intent existed
As long as def has Intent even If it’s a result of insane delusion there is liability for intentional tort
EXAMPLE: Dolores shoots Patty because she thinks Patty is Hitler. Dolores is liable for battery not withstanding her insane delusion because she had purpose to cause contact.
Delores is liable notwithstanding the insane delusion had purpose to cause contact
C. Transferred Intent
1. A ∆ acts with necessary intent to inflict intentional tort, BUT causes injury to 3rd party , the ∆ intent is transferred to actual victim.
2. Applies only to: a. Assault b. Battery
c. Trespass to Land and Chattels d. False Imprisonment
EXAMPLE: Dorkus throw a rock at Xavier, but the rock misses Xavier and hits Pompador instead. Pompador sues Dorkus, and Dorkus would be liable because he intended to commit a battery on Xavier.
Dorkus liable --> Because he intended to commit battery on Xavier and intent transfers to cause harm to Pompador
III. Causation
A. Π has to prove casual connection between Def. conduct and Π injury B. Proximate cause in intentional torts:
IV. Harm
A. Varies based on the kind of intentional tort. B. Ways to establish harm in intentional torts:
1. Specific injury 2. .
V. No Privilege or Defense
HYPOTHETICAL
Dell sees his archrival Pratt walking across the street. Although Dell thinks it’s unlikely he can throw a stone that far, Dell picks up a nearby stone and throws it at Pratt. Has Dell acted with
purpose/intent such that he may be found liable for tortious conduct?
Intent Yes, it was his desire & purpose to make contact and bring about that
result, despite him not believing It would happen
HYPOTHETICAL
Darla, due to boredom, decides to shoot her BB gun into a passing commuter train. She doesn’t want to hurt anyone, but knows that the trains at that hour will be packed with passengers. She shoots her gun at a full passenger car passing by her, hitting Plax. Has Darla acted with intent such
that she may be found liable for tortious conduct?
Intent Yes , even though it wasn’t her desire or purpose to cause harm, she knew that it was substantially certain that result would occur.
HYPOTHETICAL
Six-year-old Brian Dailey pulls a chair out from where he knows Mrs. Garrett is sitting. If Brian knew that it was substantially certain that this would cause Mrs. Garrett to fall to the ground, has he acted
with intent? Can be Intent even if child is def.
Children are liable for their own torts as long as def formed the requisite intent (known or certain to occur)
C/L Parents are not vicariously liable for intentional torts of children
HYPOTHETICAL
Delbert is late for his Torts class. Without looking where he is going, he runs out of the library and collides with Parker. Has Delbert acted with intent?
Intent? NO. Might be negligence or recklessness.
Delbert did not desire to cause contact and he did not know it was substantially certain nto occur form is conduct
Battery (OL I. B.)
I. A battery arises where:A. The ∆ Intentionally causes a harmful or offensive contact with the π or something closely connected to the π .
II. Elements: A. Intent
B. Harmful or Offensive Contact
C. Of the person, or something closely connected to person III. To establish intent, π has to show either:
A. The def desired contact
B. The def knew that contact was substantially certain to result from conduct Be sure to distinguish intent from motive.
EXAMPLE: Pete comes into bar review and sits next to Dawn and says “my neck is killing me.” Dawn says that he has decided to learn how to become a chiropractor and offers to help. Pete refuses but Dawn grabs his neck and pulls. Whether Pete feels better or not, it is a battery and Dawn had intent.
Motive --> to make him feel better BUT Purpose --> contact IV. The harmful or offensive contact element is satisfied if:
A. The contact would Inflict pain or impairment of any body function, or If a reasonable person would regard it as offensive.
EXAMPLE: Punching Arnold Schwarzenegger would be enough to constitute battery, even if he is not injured. B. Any contact that would be offensive to a reasonable person is enough for battery.
EXAMPLE: Prissy hates to be touched and believes that when people touch her, they are trying to pass alien beings into her body. Dale taps her on the shoulder and asks her for the time. Prissy freaks out and sues Dale for battery. Dale was trying to touch her, but it was not harmful or offensive to a reasonable person.
No harmful or offensive contact, No basis for battery. However, if Dale knows of Prissy particular susceptibility and acts he can be liable for battery.
(1) If defendant knows the particular susceptibility of the π :
C. It is sufficient for a battery if defendant causes a contact with something close to π .
EXAMPLE: Workers at a workplace found the coffee to be increasingly unpleasant. They hid cameras and found out that a colleague was urinating into the coffee urn. This would be battery.
Not direct contact, he caused something to bring a harmful or offensive contact. Has to be with the person
D. Unlike assault, π need not be aware of the contact. At the time is takes place
EXAMPLE: If Patsy falls asleep and while she is asleep, Barney kisses her on the forehead. Patsy finds out the next day and sues for battery. She would be able to recover.
She had her bodily integrity invaded therefore her awareness does not matter 4. Privileges and Defenses
Assault (OL I. C.)
I. An assault arises where:A. Intentional act that causes the π to experience a reasonable apprehension of an Imminent battery) B. ∆ must act with desire to cause immediate harmful or offensive contact or the Immediate apprehension
of such contact, or know that such is substantially certain to occur.
C. Liability for assault will not e found unless a reasonable person in the same position as a π would experience the same apprehension. However, If the π apprehension is reasonable, the fact that the ∆ lacked the ability to cause the harmful or offensive contact does not defeat liability.
D. Elements:
1.
Intent
2.
Reasonable Apprehension
3.Imminent Battery
II. To prove intent, defendant must:
A. Def had purpose to create apprehension
B. Def knew that apprehension was substantially certain to result from his conduct C. Transferred intent often arises with:
Applies , (Assault, battery , False Imprisonment)
EXAMPLE: Dune wants to scare Pim, so she throws a knife towards Pim but it ends up stabbing him in his leg. Dune intended to commit assault but there is also a claim for battery. Intent for assault satisfies intent for battery.
Dune wanted to put Pim In apprehension of imminent battery
Pim has claim for assault & has a claim for battery , the intent for assault satisfies for claim for assault and offensive contact since knife hit him
EXAMPLE: Beavis has been harassing Donny at school. Donny decides that he wants to end this so he will scare Beavis into not picking on him. Donny finds his father’s loaded Uzi and brings it to school with the intent simply to scare Beavis. Donny accidentally pulls the trigger just as Precious comes walking out and gets hit in the right arm. Beavis can sue for assault. Precious can bring an action for battery.
Bevis --> Assault ( Donny had desire to create apprehension)
Precious --> Donny never intended to cause a battery, but under transferred intent, Intent to commit assault to Bevis transfers to assault to commit battery and precious can recover
III. Reasonable apprehension:
A. Π must ACTUALLY SUFFER apprehension of imminent battery B. Π must be aware, unless ∆ knows of susceptibility of π
Example: Sapp worked at a clock repair store. Mrs. Hill comes into the store and finds Sapp drunk. Mrs. Hill inquires about getting her clock fixed. Sapp reaches toward Mrs. Hill and asks to pet her and fix her clock. She sues for assault. Issue was about how wide the counter was because it determined whether Mrs. Hill could have a reasonable apprehension of a battery.
Whether she could have reasonable apprehension of imminent battery--> if counter was wide then NO , if it was feasible for Sapp to touch her then she could have claim for assault.
IV. Imminent Battery:
A. Contact must carried out almost instantly
EXAMPLE: If Dracula says he will come back tomorrow to suck your blood, it is not an assault. 1.Look for elements that negate intent.
V. You often have assault and battery together.
EXAMPLE: Throwing a water balloon at someone creates the reasonable apprehension of a battery (assault) and then being struck by the balloon is the actual battery.
A. You can have one without the other.
1.Battery without assault:: Sleeping π is never in apprehension but suffered a battery.
2.Assault without battery:: Near-miss case. Def. throws something to scare them, but doesn’t hit
them
VI. Words alone rarely create an assault. (words lack imminence)
EXAMPLE: Parker is walking down a deserted alley and heard a voice saying that they have a gun pointed at his head. This is enough for an assault even though it was committed by words.
VII. Must be an intentional threat of an imminent battery.
EXAMPLE: Dom and Pat are studying together for the bar exam. Dom notices that Pat has put together checklists and diagrams for herself and wants to borrow it. Pat says no, Dom gets mad and grabs her cat and holds it over the balcony, threatening to drop the cat unless Pat gives him her outlines. Pat sues Dom for assault. This is not an assault or battery.
Has to be a threat of imminent battery or harmful offensive contact with person or something closely connected to person. Cat is not a part of her body
False Imprisonment (OL I. D.)
I. False imprisonment arises where:A. Def intentionally confines π into a bounded area against π consent and π Is aware of confinement or injured by confinement B. Elements: 1. Intent 2. Confinement 3. Againstπ will
4. Π knows of confinement or is inured thereby
II. Defendant has the requisite intent for false imprisonment if he: A. ∆ desired confinement
B. Knew that confinement is substantially certain
C. Motive is irrelevant.
EXAMPLE: Target employees are excited for their holiday party. After the store closes, they will go out. At 9 p.m., without checking to see if anyone is in the changing rooms, someone locks up the store and Patina gets locked in all night and sues for false imprisonment. She would lose because she could not prove intent.
Cannot show that target employees desired for her to be confied III. Confinement:
A. Confinement of π in bounded area.
1.No duration of confinement is required
2.Length of confinement does not determine FI. B. Force or threats of force
C. Confinement generally occurs by: 1.the use of physical barriers
2.Failing to release the π where the ∆ has a legal duty to do so or by the invalid assertion of legal authority
3.Threats of reputational harm are generally insufficient.
EXAMPLE: David tells Pablo that if he leaves his room, David will tell the world that Pablo is a virgin. Pablo stays in for a month and then sues David for false imprisonment. No confinement can be found because this was a threat of reputational harm.
4.If π knows of a reasonable means of escape: a. No confinement and no False Imprisonment
EXAMPLE: If there is an open window on the first floor and the π knows about it, there is no confinement.
If there is an open window on the third floor and π would have to jump and risk injury, this is not a reasonable means of escape.
b. Risk of embarrassment is not a reasonable means of escape.
EXAMPLE: Stuart takes all of Susan’s clothes and leaves her in the middle of the woods. Because Susan does not have a means of escape, Stuart has falsely imprisoned her.
V. Against the π ’s will:
A. If Π consents to being confined there is NO false imprisonment
EXAMPLE: Plaxis is apprehended by an undercover store detective. He is taken to a back room to call the police. Plaxis says he will wait for the police and then threatens to sue for false imprisonment but cannot
because he has consented to the confinement. VI. Π must be aware OR suffer Harm or damages: A. If the π is aware she is being confined:
1.False Imprisonment has occurred and entitled do damages B. If the π is not aware that she is being confined:
1.Only false imprisonment claim If π is PHYSICAL INJURED due to confinement
EXAMPLE: If during a lecture, all of the doors in the room were locked but students did not try to leave, there is no false imprisonment. If one person tries and cannot get out, there is a false imprisonment claim.
EXAMPLE: If a baby is locked in a room, the baby probably does not know of the confinement. If there was some sort of physical harm, there would be a claim. Otherwise, no false imprisonment.
HYPOTHETICAL
Delbert quickly locks Professor Longwinded’s classroom door during a Torts class, unlocking the room an hour later at the end of class. Every student is so engrossed in the lecture that nobody tries to leave the room during the class. Is Delbert liable for false imprisonment?
No False Imprisonment No one was aware OR injured
6. False arrest:
Intentional Infliction of Emotional Distress (OL I. E.)
I. Intentional infliction of emotional distress arises where:A. Def intentionally or recklessly engages in extreme and outrageous conduct that causes the π severe emotional distress
1. Intent or Recklessness
2. Extreme and outrageous conduct 3. Causation
4. Severe emotional distress C. Mental State:
1.Defendant must act with intent to cause severe mental distress or be reckless in creating the risk of emotional distress.
2.Intentional:
a. Consciously disregards a high risk of emotional distress b. .
3.Recklessness:
a. Disregarded a high probability that conduct would bring about distress
EXAMPLE: Dora had an ongoing feud with Pavala. Dora calls Pavala, disguises her voice and says “this is General Hospital. Your child has just been rushed to the emergency room.” Pavala suffers severe emotional distress. Dora has the intent for IIED. It was her goal to cause emotional distress and knew it was virtually certain.
EXAMPLE: Dora is at the hospital and walks by the desk where people check in and overhears a discussion and thinks that one of the nurses is saying that Pavala’s child has been rushed to the emergency room. Dora calls Pavala. This would suffice for IIED because it would be a form of recklessness.
b. No transferred intent doctrine, but:
i. Because the mental state is broader and includes recklessness. 3rd parties can recover for IIED by showing that the def was RECKLESS as to whether their conduct would cause severe emotional distress
EXAMPLE: Don stabs Paul’s father in front of Paul. If Don knows that Paul is there and knows that his victim is Paul’s father and Paul suffers emotional distress, Paul could recover against Don for IIED not because of transferred intent, but because Don was reckless.
Paul can recover against Don NOT because of transferred intent BUT because Don was reckless by knowing his victims son was there witnessing the harm
II. The element of extreme and outrageous conduct is satisfied if: A. Conduct beyond the bounds of decency
1.Offensive or insulting language is generally not considered outrageous.
EXAMPLE: Delilah, in front of everyone, says that Paula’s dress is cheap and ugly. Paula is humiliated and has a heart attack from embarrassment and sues for IIED. Paula would lose.
NOT CONDUCT THAT EXCEEDS ALL BOUNDS DOES NOT SA a. EXCEPTIONS: > lesser conduct
i. Def is engaged in certain callings (Innkeeper, common courier). If reasonably offensive
ii. Def knows of the π s particular susceptibility
EXAMPLE: Dratt knows that Pon is superstitious and releases black cats onto his property and sends him shattered mirrors. This would generally be tolerated, but since Dratt acted to exploit Pon’s susceptibility, it would be considered IIED.
iii. Someone in position of authority uses racial or ethnic insults against someone who works under them *developing*
III. Causation issue that might arise: A. Is π an emotional basket case IV. Severe emotional distress
A. Π does not have to prove: 1.Physical injury to recover B. Π simply has to prove:
1.More than the level of mental distress a reasonable person could be expected to endure. 2.Severe emotional distress, neither transitory, nor short lived emotion
3.The more outrageous the ∆ conduct the easier it will be for π to establish the requisite mental Injury
V. IIED to 3rd parties
A. Where the ∆ conduct is directed at a 3rd party, the ∆ is subject to liability to a π, assuming the other elements are satisfied
B. Elements
C. If the ∆ intentionally or recklessly causes severe emotion distress: 1.Toa π who is an immediate family member of the 3rd party,
2. where the π is present at the time and the ∆ is aware of the π presence; OR a. Can recover if no bodily harm
3.To any other π (regardless of relationship) who is present at the time, if such distress results in bodily harm.
Trespass to Land (OL I. F.)
I. Trespass to land is:A. Def intentionally enters or causes something to enter the land of the plaintiff interfering with plaintiff possessory Interest
B. Elements: 1. Intent
2. Entry into 3. Plaintiff's land
II. To establish intent, π needs to show that: * tested heavily* A. That def desired to enter the land
B. Def knew that land entry Is substantially certain to result from conduct C. Mistake is no defense
D. Not intent to trespass, it is the INTENT TO ENTER LAND
EXAMPLE: Irene is driving around and gets lost in an unknown area. She sees Dennis standing on the sidewalk. Irene pulls over and asks Dennis for directions to the freeway entrance. Dennis says to take his dirt road to the end, and make a left. Property doesn’t belong to Dennis, but to Prince who has hidden cameras. Finds Irene and sues her for trespass. Prince will recover because Irene intended to enter that land and Dennis intended to get Irene to enter the land.
It was her purpose to enter the land nominal damages Dennis had the intent
Irene is pushed onto land - There is no trespass on irenes part, but Dennis might be liable If he knew she would land on the land
E. When a person is trespassing, they are liable for the full extent of their harm.
EXAMPLE: Irene is driving carefully across the dirt road, hits a pothole and loses control. She hits an azalea bush worth $15,000. She is liable for this destruction because it occurred while she was trespassing.
III. To maintain action for trespass:
A. Π must be in actual possession OR have right to immediate possession of that land B. Adverse possessor or leasee may maintain action on land not owned by them.
C. However, if the person who holds legal title to the land is not in possession, that person may not maintain a trespass action.
IV. Entry:
A. ∆ enters or causes a 3rd person or object to enter onto the πs land 1.Anything can cause an entry Has to have some tangibility
B. Enters onto π land lawfully but then remains when under a legal duty to leave OR C. Fails to remove an object from the laintiff land when under a legal duty to do so
EXAMPLE: Darla fires a gun across Pentium’s property. This constitutes trespass because the bullet crossed the property of the π .
V. Π ’s land: (who can bring action? who is proper plaintiff?)
A. Π land includes airspace and subsurface to a level π did or could make beneficial use of B. Anyone in possession of land can bring action (Tenant, adverse possessor
EXAMPLE: Darla thinks she is crop dusting her own land but the pesticide lands on Owen’s land. He has leased the property to Tom. Tom can bring a trespass to land action because he is in possession of the land. If permanent damage occurred, the owner would have a claim.
I. Remedies
a. Three types of remedies in tort: b. Legal
i. Damages c. Restitutionary
i. Designed to prevent unjust enrichment d. Equitable
i. Injunction
II. Trespass to land: a. Nominal Damages
b. Monetary damages don’t to land c. Ejectment
i. Action brought by plaintiff to recover possession of real property* 1. Proof of legal title
2. Proof of π right to possession AND 3. wrongful possession by the ∆ ii. Successful π entitled to:
1. Recovery of property
2. Mesne damages: compensate for loss of use of land and are measured by rental value of prop or benefit gained by wrongful possessor whichever is greater
iii. At C/L where ∆ mistakenly trespasses on or takes possession of π's property & makes improvements
1. Π is entitled to recover the property & need not compensate the ∆ for these improvements.
2. True even If ∆ acted in good faith believing he had rightful possession of property
Trespass to Chattels (OL I. G.)
I. Trespass to chattels arises where:A. Def intentionally Intermeddles with plaintiffs chattel causing harm. With personal property of plaintiff B. Elements:
1. Intent 2. Interference 3. Plaintiff's chattel
II. Intent is satisfied when:
A. ∆ Intentionally performs the physical act that interefers w/ π chattel.
B. ∆ liable even if he did not intend or recognize the legal significance of his act. C. Mistake Is no defense
EXAMPLE: Dale is leaving a restaurant and takes a blue denim Levi’s jacket, believing it is his but it is really Paul’s. This is sufficient to create intent for trespass to chattels.
D. Conduct giving rise to trespass to chattels: 1.Def uses or
2.borrows without authorization or 3.Damages
4.In significant enough way to provide damages III. Chattel
A. Tangible personal property or intangible property that has physical representation promissory note, documents in which title is merged warehouse receipts or bills of landing)
B. Interference is actionable if it interferes with plaintiff possession
1.Dispossession: Direct interference , ∆ takes chattel or wrongfully refuses to return it 2.Intermeddling: interference with chattel that does not directly affect π possession C. Π must be in actual possession OR have right to immediate possession of Chattel IV. Harm: Actual Damages
A. Actual damage or dispossession that is not entirely insignificant
EXAMPLE: Keeping the jacket for five minutes is not significant enough. Keeping the jacket for a week would be and Paul would likely be able to recover the rental value of the jacket.
EXAMPLE: Pam and Dextra are at Pam’s apartment. They are playing a game where every time
“foreseeability” comes up, they do a shot of tequila. Once they finish the first bottle, Pam says she will go to the store to get more. Pam’s dog is in the backyard and Pam tells Dextra not to let the dog in the house or touch the dog. Pam comes back to find Dextra holding the dog and sues for trespass to chattels. If the dog is not harmed, there is no case.
Dextra desired to intermeddle with puppy NO ACTION because there is no harm V. Remedies:
A. Damages
Replevin restitutionary remedy that arises to get back personal property of which one is has been dispossessed
B.
Conversion (OL I. H.)
I. Conversion arises where:A. The def intentionally exercises dominion and control over plaintiffs chattel or personal property constituting a serious or substantial interference
B. Elements:
1. Intent
2. Dominion & Control 3. Substantial interference
II. Intent: * tested most*
A. Mistake does not matter must result in substantial Interference
EXAMPLE: Dale takes Paul’s jacket and loses it. Sued for conversion. Is liable. Had the purpose to exercise dominion and control over the jacket and by losing it, there is a serious and substantial interference. Dale would have to pay fair market value.
Bona fide purchaser for value.
EXAMPLE: Cruella steals Prissy’s Ming vase worth $1,000,000. Cruella sells the vase to Drake, who pays fair market value. Prissy can sue Cruella for conversion. If Prissy cannot find Cruella, Drake is a converter as well and can be sued. Either has to pay $1,000,000 to Prissy or return the vase.
Drake kept it so creating substantial Interference Intended to keep it
III. Dominion and Control
A. More serious than trespass
B. A longer period of interference and greater use of the chattel by the ∆ , more likely it will be considered conversion
C. Types
1. Wrongful acquisition (theft, embezzlement, receiving stolen property) 2. Wrongful transfer (selling, misdelivering, or pledging)
3. Wrongful detention (withholding from owner) 4. Loss, destruction or severe damage
5.Material alteration OR 6.Significant misuse IV. Factors to Consider
A. Extent & duration of ∆ dominion and control
B. ∆ intent to assert right inconsistent w/ others right of control C. ∆ good faith
D. Extent & duration of resulting interference w/ π right to control E. harm done to chattel AND
F. inconvenient & expense caused to π V. Remedies and damages
A. Typical remedy is forced sale:
1.Converter is required to pay the Fair Market Value of Chattel AT THE TIME is was converted 2.Plus consequential losses
B. Replevin: (Only for personal Propert NOT for real property)
1.An action at law for recovery of specific chattels tht have been wrongfully taken or detained. 2.Permits π to recover Immediate possession of property (at beginning of action)
3.When π seeks to recover the chattel, he must post bond as security against the possibility that judgment will be found for ∆ . ∆ may post bond as well if he wishes to retain chattel until action has concluded
4.No seizure of chattel is allowed until hearing has taken place to determine the πs entitlement to the chattel
5.Can mitigate damages
C. Damages suffered from depravation may also be recovered
1.Measure: Market value at time depravation - market value at time action commenced or value of lost use
TRESPASS TO CHATTELS CONVERSION
Intentional tort Intentional tort
Committed by intentionally dispossessing or intermeddling with a chattel in the possession of another
Committed by intentionally exercising dominion or control over a chattel and seriously interfering with the rights of the owner.
Defendant is liable for damage or diminished value of chattel.
Defendant is liable for the full value of the chattel at the time of the conversion.
Defenses and Privileges to Intentional Torts
(OL I. I.)
Remember POPCANS
P
rivilege
O
thers
P
roperty
C
onsent
EXAM TIPA
uthority
N
ecessity
S
elf-defense
Privilege
I. ∆ may not be liable for conduct that would ordinarily subject him to liability II. A privilege may exist where:
A. Person affected by ∆ conduct consents
B. Important personal or public interest will be protected by ∆ ordinarily prohibited conduct, & this interest justifies harm caused
C. Satisfied when:
1. ∆ must act freely In order to perform an essential function 2. ∆ has burden of proving existence of a privilege &
3. that the privilege was exercised reasonably under the circumstances
Consent (battery. Assualt, ect..)
D. Even if ∆ committed an intentional tort, he is not liable If the π consented to the act which constituted the tort.
E. Consent must be effective &
F. ∆ must not exceed the scope of consent
G. If the π does consent: There Is not recovery for any damages
H. Π can manifest consent expressly, by implication, or as a matter of law.
1. Express consent exists where: Plaintiff by words manifests willingness to be exposed to intentionally tortious conduct
EXAMPLE: Professor is concerned about his weight and needs to stop eating Twinkies. Tells class that if they see him eating a Twinkie, do whatever it takes to stop him. Student grabs his arm and pulls the Twinkie away, professor sues for battery. Would lose, gave express consent.
a. Limitation:Any conduct in excess of reasonable consent
2.Implied consent arises where:Plaintiff through conduct manifest willingness to be exposed to tortious conduct
EXAMPLE: X plays pickup basketball. During the game, an opposing player trips him and causes him to injure his leg. Even if done intentionally, X had impliedly consented by agreeing to play.
a. Limitation:What the def would reasonably believe Standard is:
EXAMPLE: Polly is in line for a vaccination but does not know this. Offers her arm and receives an injection. Polly sues for battery, but there was implied consent. Reasonable to believe consent had been given.
3.Consent as Matter of Law ( Π is unable to consent)
a. Emergency action is necessary to prevent death or serous injury b. Reasonable person would be expected to consent under circumstances c. No reason exists to believe that π would not consent
I. Mistake can vitiate consent when:it goes to consequence or nature of act. But when its to a collateral matter there is still ocnsent
EXAMPLE: Dale is about to become intimate with Penny when Penny asks if he has herpes. Dale, knowing he does, lies and denies it and then sleeps with Penny. Penny gets herpes and sues Dale. Will not be deemed to have consented.
If Penny is a prostitute and they engage in sexual relations and Dale pays Penny with a counterfeit bill, there is still consent because the counterfeit bill is a collateral matter.
HYPOTHETICAL
Billy Club asks Hima Tohma if he can hit her with his new baseball bat. Hima responds, “Sure—you can’t swing that foam bat hard enough to hurt me anyway.” Billy, knowing that the bat is, in fact, made of wood, swings and hits Hima. Can Billy claim the defense of consent for the battery?
There is NO CONSENT the bat Is actually made of wood goes to nature of act and therefore there would be no consent
III. Defenses to Consent
A. Even when consent is expressly or impliedly given by the π the circumstances may be such that this consent is Ineffective & will not operate as a defense.
B. Frequently tested: Mistake, Fraud, Duress, Incapacity, violation of criminal statute 1. Mistake: Consent not effective if:
a. It is the product of a mistake of fact or law as to the nature or consequence of the def act AND
b. The def is aware of the mistake 2. Fraud: Consent is not effective if:
a. Induced by ∆ intentional deceit as to the essential consequence or nature of his act 3. Duress: Consent is not effective
a. If it s induced by threat of imminent harm to the π OR b. By a false assertion of lawful authority over the π 4. Incapacity
a. Young children and people whose mental capacities are impaired by mental disease ,defect, or intoxication are incapable of consenting o tortious conduct.
b. Without the particular knowledge the ∆ may interpret a π’s actions as consent 5. Violation of criminal statutes
a. Majority
a. consent as ineffective where the ∆’s tortious conduct also constitutes a crime. b. Minority:
a. consent to a criminal act is effective for purposes of civil liability for that conduct., b. So long as ∆ act doesn’t constitute breach of peace
c. Exception
i. Consent ineffective if π is member of the protected by the violated criminal statue.
Self-Defense
I. Arises where:B. Defendant only need be reasonable and must respond with proportionate force.
II. Once the threat is over: There Is no claim of self-defense
EXAMPLE: Donna and Paula exchanged harsh words. Paula says “wait until the next time I see you alone. I am going to teach you a lesson.” Donna is alone in a parking lot that night when she sees Paula walking towards her with something in her hand. Donna picks up a stone and throws it and hits Paula, causing injury. Paula sues for battery. Donna intended contact but argues self-defense based on the earlier threat. Even if Paula was only carrying a fishing pole as an apology gift, if Donna believed she was threatened, she can respond accordingly. III. The force used must be proportionate to the threat:
A. Cannot use deadly force when threatened with non deadly force B. Retreat:
1. In all jurisdictions do not have to retreat form one's home 2. Major Jurisdictions No Retreat , Minor jurisdiction Retreat
HYPOTHETICAL
Dylan sees Percy approaching him in a bar, with a baseball bat poised to strike him. Believing that Percy intends to hurt him, Dylan wrestles Percy to the ground. Is Dylan still privileged to defend himself if it turns out that Percy was not actually intending to hurt Dylan?
Yes, he reasonably believes he’s being threatened and responds proportionately and is not liable and successfully assert self defense
Defense of Others
I. A third party who comes to aid of another and commits Intentional tort because she honestly and reasonably believes he is protecting one for imminent harm is not liable for tortious conduct
EXAMPLE: Igor overheard the threat that Paula made to Donna. Donna is in the parking lot when Igor sees Paula walking towards Donna. Igor picks up a stone, throws it and hits Paula. Paula sues for battery. Igor could successfully assert defense of others because he reasonably believed that Donna was at risk of imminent harm and responded with proportionate force.
II. ∆ who makes mistake about whether defense of 3rd person is justified or to the degree of force that is reusable cannot
assert the defense & will be liable to the π for intentional tort.
Defense of Property
I. Def may take reasonable steps to defend property ( real and personal property)II. A defendant may never use deadly force to protect personal or real property.
A. Look for situations where it escalates where it starts as property and escalates
III. One may use reasonable force to eject a trespasser from personal property after asking them to leave. IV. Recapture of chattels:
A. One may use reasonable non deadly force to retrieve personal prop provided a request was made and def is in hot pursuit
EXAMPLE: Dale took Paul’s jacket. Paul saw it and asked for it back. Dale takes off with the jacket. Paul can chase Dale and use reasonable force to get it back.
No room for mistake is he was wrong he would be liable
Necessity
I. The def is asserting that right thing to do was to commit Intentional tort. The lesser evil was committing Intentional ort II. ∆ is permitted to injure π’s proper if this is reasonable necessary to avoid substantially greater harm to eh public,
himself, or to his property. A. TWO TYPES
1. Public necessity: Def (often govt actor) is acting to protect public form severe harm
EXAMPLE: Earthquake starts a fire in the city and to stop the fire, Devilla dynamites Paxton’s home to stop the spread of the fire. Paxton sues for conversion and trespass to land. Paxton would lose. The greater good was trying to stop the fire.
Greater good was trying to stop fire
a. Could raise Fifth Amendment takings issues. Takings issues (con law context) b. ∆ not liable for damage to property
2. Private necessity: *tested more* Where def commits intentional torts and believes it is better than to risk the likely consequences
EXAMPLE: Demora is out on the water in a small boat loaded down with important cargo when a storm arrives. Demora takes her boat and ties it to Prince’s dock notwithstanding the “No Trespassing” signs. Demora could assert this defense.
lessor evil to commit trespass to land than to risk losing the boat and maybe her own physical safety was at risk
a. Defendant will be liable for any harm caused during the exercise of the privilege.
b. If private individual is exercising privilege of private necessity she Is liable for harm caused
HYPOTHETICAL
Dev is boating on a lake when his motor boat springs a leak. Concerned that he will sink and drown, Dev motors to the nearest dock, which belong to Paulo. Dev ties his boat to Paulo’s dock and walks across Paulo’s land in search of help. The boat damages the dock while moored there. Is Dev liable to Paulo for trespass? for the damage to the dock?
Def can assert necessity , but because harm occurred during privilege even def not liable for trespass def has to pay for harm to dock
Authority
Where ∆ is police office acting pursuant to warrant, valid on its face he is not liable in tort for the arrest. I. Arrest
A. Felony: Police officer can arrest person he reasonably believes committed the felony B. Misdemeanor: Police officer can arrest misdemeanors that constitute breach of the peace C. Private individuals: Can arrest if he reasonably believes a felon is being committed
Shopkeeper’s Privilege
II. A ∆ shopkeeper is not liable for false imprisonment if:
A. He has reasonable suspicion that the π has stolen goods B. Uses reasonable force to detain the person
C. And detains the π for a reasonable period & in reasonless manner D. Either on premises or in immediate vicinity
III. If store owner has reasonable suspicion that someone has shoplifted they may detain that person for a reasonable time provided they conduct an investigation in a reasonable manner
1.Duration 2.Suspicion
3.Manner of investigation
EXAMPLE: Drug Co. has an undercover detective who sees Paxton shopping on a hot day in a long heavy coat. He believes he saw Paxton put something into the pocket of the coat. Grabs and detains him until the police determine that he did not take anything. Depends on length and manner of detainment.
Discipline
IV. Parents and teachers may use reasonable force to discipline childrenBAR EXAM APPLICATION
Question 1
David’s neighbor, Jack, is a musician and practices with his trumpet every day, late into the night. One day, David saw Jack at the local grocery store. Frustrated by the amount of noise coming from Jack’s house every night, David approached Jack from behind and yelled, “If you don’t stop playing the trumpet, one day I am going to kill you.” Unknown to David, Jack was wearing the earplugs he wore to perform live and did not even know that David was speaking to him.
Dismayed by Jack’s apparent indifference, David telephoned Jack and repeated the threat. Jack was shocked to discover his neighbor disliked his music, and quickly apologized. That night Jack went to bed early and did not practice his trumpet.
In a cause of action against David for assault, Jack will
A) prevail, if the reason he refrained from practicing his trumpet was fear of retribution from David.
B) prevail, because he was upset by the telephone call and David should reasonably have known that he would be.
C) not prevail, because he was unaware of David’s statements in the store. D) not prevail, because David said “one day I am going to kill you.”
BAR EXAM APPLICATION
Question 2
Larry, the owner of a small bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts with large pockets and sneaking books out in the pockets.
Two days after the most recent shoplifting incident, on a particularly warm day, Tim entered Larry’s bookstore wearing a sweatshirt similar to those worn by the shoplifters. Larry noticed Tim’s sweatshirt and watched him spend over an hour slowly moving through the various book stacks. Expecting the worst, Larry moved a large heavy book cart in front of the front door, and called the police station to report a shoplifter.
Tim eventually moved to the cash register to pay for his selection of books. After paying for his books, Tim discovered his exit was blocked by the book cart. Shortly thereafter, the police arrived and asked Tim to empty his pockets. Tim did not have anything in his sweatshirt pockets.
Tim’s cause of action for false imprisonment will
A) fail, because the shopkeeper’s privilege will prevent the cause of action. B) fail, because Tim was not harmed by the confinement. do not have to be harmed C) succeed, because Tim was aware of the confinement.
D) succeed, because Tim was not in fact a shoplifter. wouldn’t have action if he was
YES THERE WAS CONFINEMENT, PLAINTIFF AWARE, ECT IS SHOP KEEPERS PRIVLEGE APPLICABLE
UNDER THE FACTS DEF HAD REASOABLE SUSPICION THAT TIM WAS A SHOP LIFTER AND CONDUCTED A EAOSNABLE INVESTIGATION AND DETAINED FOR A REAOSNABLE TIME
NEGLIGENCE
MOST IMPORTANT* WHEN IN DOUBT DEFAULT LEGAL THEORY I. Frame the elements as follows
A. Duty:
1. Whether the law imposes a legal obligation on the def toward the plaintiff B. Standard of Care:
1. The measure of the duty owed C. Breach of Duty:
1. The failure to meet the standard of care D. Cause in Fact:
1. Connects def breach to plaintiff injury E. Proximate Cause:
1. Are there policy reasons to cut off liability with other elements established F. Damages:
1. Plaintiff has to prove damages G. Defenses
Use headings on a negligence question—separate out the elements. On an essay, use the facts and engage in analysis.
Duty
Foreseeable Π
Generally no affirmative duty
to aid
Special Relationships
Misfeasance
Nonfeasance
I. General duty rule:A. Obligation requiring the ∆ to conform to a certain standard of conduct to protect others from unreasonable risk
That when the def is engaged in affirmative risk creating conduct causing personal Injury or property damage a duty is owed to a foreseeable plaintiff.
B. Duty is a significant issue where there is: (EXCEPTIONS) 1. Unforeseeable Plaintiff
2. Nonfeasance -- Failure to Act
3. Harm other than personal injury or property damage
4. Where the def Is a land possessor/ LL/Utility/Government entity
Unforeseeable Π s
II. In the famous Palsgraf case, Justice Cardozo articulated the rule that: A. ∆ owes a duty only to foreseeable πs
III. Traditional Rule
A. No affirmative duty to take action to aid or protect a π who is at risk of injury unless such action is taken. Based on nonfeasance and misfeasance.
B. If ∆conduct is responsible for placing π in a position where he requires aid, the ∆ has a duty to take action to aid π .
EXAM TIP
1. Misfeasance (Negligent Omission): Occurs when ∆ fails to do something that a reasonable person would have done( stopping at stop sign). Duty is owed. 2. Nonfeasance: Failure to render promised act
EXAMPLE: Drudge is driving negligently, jumps the curve and collides into the back of a parked car. The parked car contained explosives, and a huge explosion occurred. Three blocks away, Polyanna was walking down the street and was hit by a piece of falling glass from the explosion. She sues Drudge for negligence and will lose because she is not a foreseeable π .
Rescuers: Owed an independent duty
III. General Rule: Resueres must act reasonable in effecting the resue.
HYPOTHETICAL
Della negligently fails to maintain a stool in her ice cream parlor. Xena, a customer, sits on the stool and falls on to the ground because of the disrepair of the stool. Parker runs across the ice cream parlor to help Xena, but slides on the ice cream Xena dropped when she fell, breaking his ankle. Does Della owe Xena a duty? Parker?
No duty the negligent act in not maintaining the stool Xena would be owed not Parker BUT rescuers will be able to recover because a duty was owed to them
IV. Misfeasance:
A. Affirmative Risk creating Conduct B. Negligent Omission
EXAMPLE: Debo is driving and because he is not paying attention, fails to stop at a stop sign. Owes a duty to π . This was misfeasance, created an affirmative risk of harm.
V. Nonfeasance begins with the assumption that there is no duty at all. Failure ot Act A. Duty to rescue or aid
EXAMPLE: Diablo is walking on the railroad tracks when he hears the sound of a baby crying. He knows a train is coming and watches it kill the baby. The parents of the baby sue Diablo for negligence. Diablo owes no duty.
i. EXCEPTIONS:
1. The def tortious conduct creates need for rescue
EXAMPLE: Dexter is driving across a narrow bridge and is driving on the wrong side of the center line. Polly tries to avoid him and drives off the bridge. Dexter has a duty. His negligence created the need to rescue. Owes a duty to Polly
IV. Undertaking to Act
A. Some jurisdictions say you are only liable if you leave the defendant in a worse position. B. Good Samaritan statutes:
EXAMPLE: Delilah is on a deserted beach and sees a car fly over a bridge into the water. Delilah has no obligation to rescue, but if she undertakes to act she cannot then swim away.
negligent and reckless and more culpable to be liable V. Reliance
A. Def creates reliance
EXAMPLE: Palatin calls Dina saying that he has chest pains. Dina says she will take him to the ER. On her way over to his house, Dina runs into friends and goes with them instead of Palatin. She owes him a duty because she said she would come to his aid.
VI. Special Relationship: Relationship of mutual dependence
A. ∆ has duty to take affirmative action in aid of plaintiff where a special relationship exists between ∆ π B. Recognized relationships
1. Employer-Employee during scope of employment 2. Common carrier and innkeeper – customer 3. School-pupil
4. Parent-child 5. Business-patron & 6. Jailer-prisoner
7. Social Co-adventurers
EXAMPLE: If Diablo was the father of the baby on the railroad tracks, he would have a duty to rescue it. HYPOTHETICAL
Darla, an expert swimmer, is sunbathing on a deserted beach when suddenly Paulo’s car drives off a bridge and into the water. Is Darla liable if she ignores Paulo’s plight and continues sunbathing? What if she starts bringing Paulo back to shore, then abandons the rescue because she spots a rare fish she wants to inspect?
Typically, Darla would have no duty to rescue despite her ability and awareness of the need Nonfeasnace no obligation to take any affirmative steps. BUT here she begins to act and stopping the rescue is no reasonable conduct.
However she cannot leave plaintiff In worse position
HYPOTHETICAL
Dino, a driver for Mauvehound Bus Lines, sees that a passenger is having difficulty breathing. Does Dino have a duty to come to the passenger’s aid? Do the other passengers?
Employee of common courier. Here there Is a specil relationship herefore he has a duty to rescue but the OTHER passengers do not have a special relationship
Duty to control third parties
II. There is no duty to control the conduct of a 3rd party as to prevent him from causes physical harm to another
UNLESS:
A. A special relationship exists between the ∆ & the 3rd party that imposes a duty upon the ∆ to control the
3rd party’s conduct, OR
B. A special relationship exists between the ∆ & the 3rd party that gives the 3rd party a right of protection
EXAMPLE: Delberto and Tina are strangers sitting next to each other at a bar. They start chatting and Tina says her husband is going to come by and pick her up. She says she is going to kill him when he does. Tina leaves and shoots her husband. Husband sues Delberto for not warning him.
EXAMPLE: A prison has a dangerous criminal locked away and the criminal escapes. The prison has a duty to warn people in the neighborhood.
EXAMPLE: A mother knows that her son always tries to kill babysitters when she leaves him with them. She must warn the babysitter.
EXAMPLE: Psychotherapist exercises enough control that when they know of the patient’s dangerous propensity, there is a duty to warn the party that might be in danger.
C. Providers of alcohol
1. Traditional rule: Social host provider of alcohol had no duty to that 3rd party 2. Dram Shop Acts:
a. Impose liability on commercial establishments who serve alcohol Not expanded to social hosts D. Negligent entrustment:
1. Form of misfeasance--> Duty to any foreseeable π. ∆gives something to someone that knows Is incapable of handling dangerous object
EXAMPLE: Father gives son a gun to play with. If son shoots a third party, the father can be sued.
Duty to Protect: (3rd category to nonfesance)
III. One generally has no duty to take affirmative steps to protect others form 3rd party criminal acts absent an exception. IV. Start looking for special relationship Courts require high level of forseeability in order to find existence to duty. Special
relationship is not enough
A. EXCEPTIONS: Special Relationship
Tenant Paxton is robbed at gunpoint by a stranger while in the laundry room of his apartment building owned by Drucilla. Another tenant was robbed in the laundry room last month. Can Paxton proceed with a negligence action against Drucilla?
Duty issue : Nonfeasance context. Paxton Is saying LL should prevent the conduct Special Relationship ? Yes. LL & Tenant
Is there enough forseeability to impose duty? Yes. there was a prior similar incident Paxton has not won, there is only duty established here
Government Entity
V. When the defendant is a governmental entity, the question of whether the defendant owes a duty to the π will depend on the function the government is fulfilling that gives rise to the cause of action.
A. Proprietary function: (Will not find Duty)
1. Acting in area traditionally occupied by private entities 2. Treat them the same as any other ∆
B. Discretionary activity: (No duty)
1. A decision that involves using judgment 2. Allocating Resources
C. Ministerial function: (Will find duty)
1. Once govt has undertaken an act It must do so non-negligently
EXAMPLE: Parlu is injured at an intersection when she it hit by a car. She sues the city, saying there should have been stop sign. City will probably win. The decision of where to place the stop sign is a judgment decision on the part of the city.
EXAMPLE: If the stop sign was installed incorrectly, Parlu would be able to recover against the city. This would be ministerial function and parlu would be able to recover
2. Public duty doctrine:
a. When a government agency (e.g., police, fire department) is sued for failing to provide an adequate response, courts will find no duty.
b. Failure to respond doesn’t create duty i. EXCEPTIONS:
1. There has been reliance on the response of the
2. There is a special relationship between the π and the agency or
3. The agency has increased the danger beyond what would other wise exists 3. If the defendant is a utility: (water , electric company)
a. Courts have refuses to impose duty beyond those who are in privity of contract to the utility.
Negligent Infliction of Emotional Distress (NIED)
VI. If the π ’s injury is not personal injury or property damage, duty issues arise.A. Emotional Distress Special rules for claims for emotional distress
EXAMPLE: Dell is speeding and driving negligently. He collides with and injures Puka, breaking her leg in five places. Puka cannot work, has a lot of medical bills and her car is destroyed. She is in great pain and will walk with a limp for the rest of her life. Puka can recover for pain and suffering.
Pai n and suffering are not subject to the limitations placed on claims for pure emotional distress. Flows form physical injury
VII. Direct Actions:
A. When ∆ engages in negligent conduct π suffers emotional distress and some physical manifestation 1. In most jurisdictions, to recover for emotional distress the π must:
a. Have been in the zone of danger : The area i nwhich he was at risk of being physically injured; AND
b. Have suffered some accompanying physical manifestation of the emotional distress EXAMPLE: Pavi is standing on the sidewalk waiting to cross the street. Dab jumps the curb, almost gets run over but jumps away. Pavi has a heart attack because he was almost run over. A duty is owed because Pavi was in the zone of danger.
DUTY ISSUE: BECAUSEE NATURE OF HARM IS EMOTIONLA DISTRESS. THERE WAS A NEAR MISS, ALMOST PHYSICAL INJURED AND SUFFERED HEART ATTACK OF EMOTIONAL TRAUMA
c. EXCEPTIONS:
i. If ∆ negligently transmits a telegram announcing death of a loved one; AND a. π can recover
ii. if the ∆ negligently mishandles a corpse
iii. In a minority of jurisdictions, if defendant has a preexisting duty to π , π may recover for negligent infliction of emotional distress.
iv. Some jx have eliminated the requirement of physical manifestation of emotional distress & allow πs to prevail based on a showing of severe emotional distress without accompanying physical symptoms
VIII. Bystander Actions:
A. Physical harm occurs to a loved one and the π sues for his emotional distress as a result of the Injury to another.
1. Many jurisdictions require the bystander to have been in the zone of danger.
2. (However, most courts have now adopted some version of the bystander liability rule. A π may recover for negligent infliction of emotional distress under a bystander theory if he
a. was located near the scene of an accident; b. suffered severe emotional distress; and c. had a close relationship with the victim.)
EXAMPLE: Mom and Dad go out for a walk with Junior. Dad and Junior are holding hands and crossing the street, Mom stopped to tie her shoe. A negligently driven car runs over and severely injures Junior. Dad jumps out of the way. Mom watches the events. Mom and Dad both have heart attacks and sue the driver for NIED. Under MBE, only Dad can recover because he was in the zone of danger. Would have direct and bystander action. Mom cannot recover.
Mom not in zone of danger under MBE rule
3. Some jurisdictions allow π s outside the zone of danger but on the scene of the injury to recover for emotional distress.
IIED
NIED
Theory 1
OR
Theory 2 Theory 1 (direct claim)OR
Theory 2: (bystander action) Π must be present when conduct occurs to 3rd party victim Π without a special relationship must be present when conduct occurs AND Π is within the “zone of danger” AND Π is present at the scene and witness the event Π mist be a close relative of the 3rd party victim Π suffers sever emotional distress AND some accompanying physical manifestation of the emotional distress Π is a close relative of the 3rd party victim AND ∆ is aware of π’s presence; AND Π suffers actual bodily harm ( a physical manifestation of emotional distress) Π suffers sever emotional distress Π suffers severe emotional distress (whether or not it results in bodily harmWrongful Conception, Wrongful Birth, Wrongful Life
On the MBE, this is usually a wrong answer due to the jurisdictional splits.EXAMPLE: Xena goes to see Dr. Destructo for amniocentesis and Dr. commits malpractice and punctures the fetus’ lung. Child is born with a collapsed lung. Child can sue Dr. because negligence is why he has a collapsed lung.
I. Wrongful conception applies where the injury is:
A. Arises where π has had a negligently performed vasectomy or other negligently administers form of birth control.
B. The π did not want a child, but now has one. C. Damages typically involve:
1. Cost of the birth and cost to rectify the ineffective contraceptive measure II. Wrongful birth is:
A. Claim of parents for birth of an unhealthy child
1. Wrongful birth claims generally stem from: Physician’s failure to diagnose a disability in the fetus, which he π claims would have led her to not give birth to the child
2. Many courts do not recognize claim for wrongful birth , but some courts will award: 3. Damages:
a. Award extraordinary costs of having child with special needs, but may be offset by having the child
III. Wrongful life is:
A. Child's action for having been born unhealthy B. Most courts will not award damages
1. Some courts Costs of child’s special needs after age of majority
Land Possessor Liability (Last duty area)* Heavily tested*
EXAM TIPI. Standard of care applied to owners and occupiers of land varies according to which of the three categories of danger activity were involved In the injury to the π.
A. Activities The injury to the plaintiff is derived from the conduct of person on the land
B. Artificial conditions The injury to the π derived from circumstances created by persons on the land, such as buildings, excavation, cultivation, ect
C. Natural conditions injury to the π derived from circumstances not created by persons but existing o nthe land such as natural bodiesof water, tress occurring naturallt, falling boulders, ect
a. Π s on the land (1) Invitees
(a) An invitee is:
A person who enters land with ∆ express or implied consent of land possessor There to confer potential economic benefit
held open to public at large
Public Invitee: Business Invitte:
EXAMPLE: Shoppers in a store or patrons in a museum.
(b) Defendant has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land.
(2) Licensees (a) A licensee is:
A person who enters the ∆s land with ∆ express or Implied permission. No purpose benefitting the ∆ or ∆ activities
HYPOTHETICAL
Delbert invites his classmate Paco to dinner at his home. Paco is injured when his hand is cut on a piece of broken tile in Delbert’s bathroom. Is Paco a licensee or an invitee?
Licensee Social guest Is there
Duty to warn of known concealed dangers
(b) Land possessors must warn licensees of:
(3) Trespassers
(a) Trespassers are:
Enter land without consent of land possessor (b) Only obligation on the land possessor is:
Avoid the Infliction of willful and wanton harm
(4) Status can be debatable and can change.
EXAMPLE: A Dean is having an open house for students of her law school. When Parton trips over a sprinkler head covered by grass and breaks his ankle, he sues Dean. He is probably an invitee because he was there to confer a benefit on Dean. There is a duty, but has Dean been reasonable? Status invitee to confer economic benefit on Dean. Duty of reasonable care
Parton starts wandering around the house and ends up cutting himself on a piece of broken marble. No longer an invitee. Could he have reasonably believed that he had implied consent to be in that part of the house? If a licensee, Dean had a duty to warn. If a trespasser, no duty to warn.
Not invitee. Is he licensee or trespasser. (5) Other duties owed by land possessors
(a) Activities on the land:
Injury to the π derived from the conduct or persons on the land
Aritifical conditions : only for invitee does ∆ have to search out dangers. licensee expeted to take property in condition ando nly has to warn about concealed dangers
(b) Only for an invitee does a land owner have a duty to search out dangers on the property. (c) If there are known or frequent trespassers:
Land possessor must warn of known artifical dangerous conditions
EXAMPLE: Dabya knows of trespassers. If she builds a crocodile pit and hides it, she must put up a warning of the dangers. If there is naturally occurring quicksand, she does not need to warn.
(6) child Trespassers (Attractive Nuisance Doctrine)
(a) If the conditions apply, even though there is a trespassing child, the child will be treated like an invitee.
(b) Five factors:
1) Artificial condition is a
2) Is it forseeable that children are likely to trepass where the artificial condition is located 3) The child trespasser is unaware of the risk; AND
4) forseeable risk of unreasonable danger to tresspassing children 5) Risk of danger of theartificial condition outweights utility
EXAMPLE: Six-year-old Pablo is trespassing on Devin’s land. Devin is building a new barn so there is scaffolding and construction. Pablo starts walking around when one of the boards cracks, he falls and breaks his back. Pablo sues Devin. Court will apply the factors.
WOULD 6 YR OLD APPRECIATE DANGER? IF JUDGE APPLIES DOCTRINE CHILD IS INVITEE AND OWED DUTY.
Abolished using status and owing duty to any land entrant. MBE looks at status
b. Π s not on the land (but adjacent to it) (1) Artificial condition on the land:
There is a duty of reasonable care (2) Natural condition on the land:
No duty unless it’s a tree in an urban area
EXAMPLE: Desiree builds a faux Eiffel Tower on her property. On a windy day, a piece of the tower breaks loose and hits Pierre on the head. Pierre sues Desiree. She owes him a duty of reasonable care.
It’s artificial condition she brought to property
If Pierre is blinded by a naturally occurring quicksand pit, he is not owed a duty. c. Landlords and Tenants
(1) Landlords are not liable unless: (a) A common area
(b) Negligent repairs
(c) A Known hidden dangerous condition
Standard of Care (OL II. B.)
I. 4 standardsA. Reasonably prudent B. Child
C. Statutory neg per s:e D. Professionals
II. Reasonably Prudent Person Under the Same or Similar Circumstances A. Objective standard of care:
1.Look at ∆ conduct and measure against reasonably prudent person 2.Jury must decide what level of conduct is standard
B. Must determine what circumstances are relevant.
EXAMPLE: 30-year-old Dolores has lived her entire life in NYC. She has never driven a car. Dolores accepts a job in LA, takes the driving test and passes. On her first day as a licensed driver, she collides with Pinky and Pinky sues. The fact that it is her first day is irrelevant.
Objective standard
(1) Defendant must rise up to the level of the average person in the community. (2) We do not consider:
Mental abilities, sanity, slow reflexes
(3) We do take into account:
(a) Physical conditions (blind, loss of limb) (b)
EXAMPLE: Delbert is notified that his child was injured and taken to the hospital. He jumps into his car and speeds to the hospital and ends up injuring Plax. Jury will consider whether Delbert acted reasonably when rushing to attend to his injured child.
EMERGENCY WILL BE OCNSIDERED AS PART OF CIRCUMSTANCES
EXAMPLE: If Dorkus is driving while distracted and has to veer his car into Pompador’s Jaguar in order to avoid hitting a child, he cannot claim emergency because he created the situation.
Unreasonable conduct c. Analysis of the breach is:
(1) (2)
(3)
EXAMPLE: Dunco is a trolley company and decides to build one using uninsulated wires. Putnick is walking across the bridge carrying a metal pole and the pole makes contact with the wires,
shocking him. Must use above considerations to determine whether standard of care was met. Personal injury forseeable π
(4) Custom evidence (a) Deviation favors π .
(b) Compliance favors defendant.
EXAMPLE: Π could put on evidence that most trolley lines insulate their wires. This is helpful evidence in proving negligence if it is well-established custom designed to prevent shocks from the uninsulated wires.
VI. Children
A. The reasonable person standard specifically takes account of age when defendant is a minor. Cannot use same judgment as adults.
i. Majority of jurisdictions:
1. A minors ∆s conduct is assessed according to what a reasonable child of the same age, education, intelligence, and experience would have done
2. Subjective: Looking at child ∆ ( intelligence, age, personal experience)
3. Objective: Compare to other reasonable children of same age experience & intelligence ii. Minority of jurisdictions:
1. Age 6 and below B. EXCEPTION:
i. If child is not behaving as a child and neggedi n adult activity or Inherently dangerous activity treat child as adult
EXAMPLE: 11-year-old Darla is driving her parents’ car and collides and injures Pava, when Pava sues Darla, because she was driving a car which is an adult activity and an inherently dangerous activity, Darla does not get the child standard and will be held to the standard of the reasonably prudent person.
VII. Statutory and Negligence Per Se
A. A statute that provides for civil liability supersedes the common law of torts.
EXAMPLE: If a state legislature passes a law that says “anyone who is injured in an automobile accident and was not wearing their seatbelt cannot recover in tort,” a π cannot recover in a negligence action if she was not wearing a seatbelt.
B. Negligence per se:
i. When determining whether the statute should apply, a judge considers: 1. Is π in class statute designed to protect
2. Was statute designed to protect against type of harm suffered by π
EXAMPLE: Legislature in the state of Panic passes a law that says “anyone driving after sundown without headlights is guilty of an infraction punishable by up to a $1,000 fine.” This is a criminal law. Dana is driving after dusk without headlights and cannot see Trachsel crossing the street and she runs over and injures him. Trachsel sues Dana in negligence and would prefer that the judge use the statute to set the standard of care because it limits the jury role.
Stat sets standard of care
Duty was she driving after dusk w/o headlights
3. In a majority of jurisdictions, this means that an unexcused violation conclusively establishes that defendant breached his duty to π .
4. Minority jurisdictions regard a qualifying violation of statute by defendant as either raising a rebuttable presumption or as prima facie evidence that defendant’s conduct breached the duty to π .
ii. When the statute does not apply
1. Statute will not be used to set the standard of care but the case proceeds under reasonable and prudent person standard of care.
EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences between their property and neighboring property, failure to do so results in a fine up to $1,000. Dunn railroad constructs a flimsy fence between their land and Pierre’s. Railroad workers mow the lawn next to the fence, and on the other side of the fence is Pierre’s cow. Cow knocks the fence over and eats herself to death on the cut grass. Statute is not designed to protect cows from overeating and will not apply.
Π does not lose stat will not be used to set standard of care but case will proceed under reasonable prudent person
2. Situations in which the statute standard will not apply:
a. Would have resulted in a harm greater than the harm produced by the violations; OR
b. Would have been impossible
EXAMPLE: Diva injures Pavarotti in a collision. Pavarotti wants to show that Diva was driving with an expired license and use the statute as a standard of care. Court will require Pavarotti to show that Diva was driving unreasonably.
VIII. Professionals
A. For lawyers, doctors, accountants and architects, courts will defer to the profession: B. Medical Malpractice:
(1) Custom establishes standard of care As long as doctor has complied with custom
