Torts Notes

I) Intentional Torts

A) Elements

1) Volitional Act

2) With intent

(a) Transferred intent applies to all intentional torts except IIED

(i) Can transfer between people and tort or both

(b) Intent always includes when a “substantial certainty” the harm would result

3) Caused injury

(a) “but for” and proximate

(b) Substantial factor is sufficient

(c) Damages = no ACTUAL damages required for intentional torts

(i) May be nominal

(ii) Or punitive (with malice)

B) Types of intentional torts

1) Battery

(a) Harmful or offensive contact

(i) Reasonable person standard

Hypersensitivity does not matter unless defendant was aware of it

Absent indication otherwise, people are presumed to have consented to the

contacts inherent in ordinary daily life

(b) With the victim’s person

(i) May be through indirect contact, but must be some contact

(ii) Anything connected to their person

(c) Causation

(i) Defendant action was substantial factor in causing the harm

(d) Damages

(i) No actual damages required

(ii) May be nominal (dignity)

(iii) With malice, may be punitive

Some states allow conscious disregard of highly probable danger

2) Assault

(a) Intentional

(i) Intent to place someone in apprehension of imminent harm or offensive

contact

(b) Overt Act

(i) Mere words not enough without something else

The something else can be circumstances or conduct

(c) Reasonable apprehension of imminent battery

(i) Apprehension = reasonably aware

(ii) Imminent = NOW, not later

(d) Damages

(i) No actual damages required

(ii) May be nominal (dignity)

(iii) With malice, may be punitive

3) False Imprisonment

(a) Intentionally

(b) Confine or restrain another

(i) By using

Physical force or blocking exit

Shopkeeper exception/privilege: to reasonably confine a suspected

shoplifter

A complete defense to false imprisonment

Orders

Not mere persuasion

Direct or indirect threats

False displays of authority

(ii) Victim must be aware of confinement

Unless actual harm results (ie: to an unconscious person)

Transferred intent applies

Can be liable to a third party if they are confined and aware of it, even

if intended to confine or prevent entry to someone else

(iii) Length of confinement does not matter, except to damages

(c) To a bounded area

(i) No reasonable means of escape that is apparent or discoverable

(d) Damages

(i) No actual damages required

Unless victim was unaware of confinement

(ii) May be nominal (dignity)

(iii) With malice, may be punitive

(e) Defenses

(i) Citizen’s arrest

4) IIED

(a) Intentionally or recklessly

(i) NO transferred intent

(b) Engages in extreme or outrageous conduct

(i) Exceeds limits of human decency, civilly intolerable

(ii) Ie:

A pattern of conduct

May be a single incidence of conduct if the circumstances make it

extreme or outrageous

Susceptible victim groups (young, old, pregnant)

Only liable to a 3rd party bystander when defendant knows the bystander is

present, and the bystander observes harm to the victim and:

The actual victim was an immediate family member or

It is a random bystander and actual bodily harm results

(c) Causation

(i) Substantial factor test applies

(ii) In the case of a bystander, knowledge they were present is also required

(d) Damages

(i) Must prove ACTUAL damages (ie: severe emotional distress in excess of

what a reasonable person could endure; physical injury not necessary, may be

emotional/mental)

5) Trespass

(a) Land

(i) Intent

Not to trespass, only to enter or engage in the act that leads to entry

Mistake of fact does not matter

Exceeding the scope of an earlier consent qualifies as intent to invade

(ii) Physical invasion of another’s land

Can be a thing

can be underground or in the air

can be a landlord trespassing onto a tenant’s land (because a landlord does

not have a right to possess his rented apartments)

(iii) Standing

Anyone with right of possession (owner, lessee, adverse possessor,

constructive possessor, etc)

(iv) Damages

Actual damages not required

Nominal damages possible

(b) Chattel

(i) Intent

To engage in the act that interfered with the possession right to the chattel

Intent to interfere not necessary

(ii) Interference with right of possession

Dispossession

Intermeddling

Makes it harder to use and enjoy the chattel

(iii) Standing

Anyone in possession, or

The immediate right to possess

(iv)Damages

ACTUAL damages required

Repair costs, loss of use, reasonable rental, diminution of value, etc

6) Conversion

(a) Intent

(i) To commit the act that interferes with use and enjoyment of a chattel

Must be tangible property, or intangible reduced to tangible form

Demand and refusal to return must occur when chattel was obtained

rightfully

(ii) Note: if a buyer rejects or revokes goods for any reason, then they have not

accepted them and MUST return them to the merchant. Any other use by the

buyer is a conversion for his own use and the merchant is entitled to market

price damages at time of conversion.

(b) Interference

(i) An act of possession or interference with plaintiff’s chattel

(ii) Eg: stealing, substantially alter, severely damage or destroy

(c) Seriousness

(i) Consider 5 things

Duration and extent of interference

Defendant’s intent to assert a right consistent with the rightful possessor

Defendant’s good faith

Expense or inconvenience to plaintiff

Extent of harm to the chattel

(d) Damages

(i) Full value (market value at time of conversion), or

(ii) Replevin (recover the chattel)

C) Defenses to intentional torts

1) Consent

(a) Express (words or actions, demonstration of willingness)

(i) Subject to scope of consent limitations

(b) Implied

(i) By silence, when a reasonable person would have consented (such as where

necessary to save a life or other interest)

Ex: The person was in need of rescue from a battery

(ii) By participation (essentially an assumption of risk standard)

Subject to scope of consent limitations as well. If conduct intentionally

exceeds scope, then it is no defense.

(c) Invalid when

(i) Obtained by fraud

(ii) Obtained by duress

(iii) Plaintiff was mistaken and defendant knew it

(iv) Youth, intoxication, or incompetence are at play (maybe)

2) Defense

(a) Self-defense

(i) Non-deadly force

When reasonable belief about to be subjected to offensive contact or

bodily harm

(ii) Deadly force

Only when reasonable belief that serious bodily injury or death was

threatened

Proportionality requirement

NEVER available to defend property

(iii) Reasonable person in circumstances standard

May apply even when reasonable belief turns out to be mistaken

(iv)Duty to retreat

Majority: no duty to retreat

Restatement: duty of safe retreat anywhere

(v) No 3rd party liability unless was deliberate

(vi)Mistake as to self-defense – must have been reasonable to provide a defense

(reasonable person in the circumstances)

(b) Defense of others

(i) Same as self-defense with reasonable belief the other person would have been

entitled to use self-defense

(c) Defense of property

(i) NO deadly force

(ii) Reasonable mistake as to property boundary does NOT negate defense

3) Privileges

(a) Recapture of chattel

(i) Reasonable force permissible when property was wrongfully taken

If was acquired lawfully, peaceful means required

(ii) Force never permitted to reclaim land

(b) Parental discipline

(i) Reasonable force or reasonable confinement

(ii) Reasonableness can vary with age and maturity of child

(iii) Must be the parent, except

Parent can authorize educator to have same privilege

(c) Necessity

(i) To prevent substantially more serious injury than that which was caused

(ii) Private

Qualified privilege to protect a limited number of people

Only actual damages recoverable if was trespass

(iii) Public

Absolute privilege to protect a large number of people

Not liable for damages as long as was reasonable conduct

Reasonable mistake still ok

(d) Arrest

(i) Elements

If a felony has been committed and

Misdemeanor only if breach of peace imminent or occurring in

presence of arresting party

Reasonably believed the arrestee committed it

(ii) Private citizen

Must be CERTAIN a felony was committed, but may be mistaken as to

the person having committed it

(iii) Police officer

May be mistaken as to both elements as long as belief was reasonable

II) NEGLIGENCE

A) Elements

1) Duty

(a) Standard: reasonable care to all foreseeable individuals

(i) Foreseeability

Majority = duty owed to all foreseeable victims

Minority = duty owed to all, even unforeseeable, if conduct enhances risk

of harm to others

Foreseeability is for the jury to determine

(ii) 3rd party liability

A person will never be liable in negligence for the criminal acts of a 3rd

party UNLESS the crime was foreseeable

(iii) Special victims

Intended beneficiary

Owed a duty even if not present

Viable fetuses owed the duty

Wrongful birth, wrongful pregnancy

(iv)Special defendants

Physical disabilities (allowances made)

Children

Under age 4, incapable of negligence

Otherwise, judge by other children of that age and experience

No allowances for children engaging in adult activities

Special skills

People who have special skills are held to the standard of others with

similar knowledge and skill

Ex: race car driver = higher standard when driving

Professionals (includes physicians, licensed trades, etc)

Standard of care expected of others in the profession with same skill

and knowledge

Attorney malpractice

Plaintiff must show they had a good case that would have won but-

for the attorney’s negligence

Physician additional duty of informed consent

Liability for lack of informed consent ONLY when there is HARM

that results

Exceptions when

common knowledge risk

patient waives informed consent

patient incompetent (but must use diligence to find someone on

their behalf)

disclosure would be harmful to the patient

automobile drivers

reasonable care to all passengers

special skills

drivers with special skills (gas truck drivers, race car drivers, etc)

will be held to the standard of those with similar knowledge or

skill

some states (not MD), guest statutes require only refrain from gross

negligence or misconduct for free passengers

(v) bailments

balior (the one giving the thing)

gratuitous bailment

duty to warn of known dangerous defects

commercial bailment

duty to disclose dangerous defects if known or should have known

of defect

duty to inspect

bailee (the one entrusted with the thing)

benefit to bailor (from the bailment)

duty to refrain from gross negligence

benefit to bailee

duty to use extraordinary care

mutual benefit

duty of reasonable care

(b) Failure to act = no duty

(i) Exceptions

Special relationship

Gives rise to duty to control third party also

Contractual or relational

Authority over another

Voluntary undertaking

Only liable for gross negligence

Exception to the exception: if victim caused the danger, then it is

reasonably foreseeable someone might attempt rescue and the victim

will be liable

Perilous acts caused = duty to act

(c) LAND: Standard of care/duty

(i) Trespassers (no permission, knowledge, or consent)

Owed only a duty to refrain from intentional, willful or wanton

misconduct

When trespassers are anticipated, expected, or known

Duty to warn of “traps” (artificial, dangerous, deceptively innocent)

Duty to warn of traps applies in cases where invitees may be likely

to trespass into closed off areas

Attractive nuisance doctrine = reasonable care to avoid viewable

enticements to danger

Does the risk outweigh the burden of eliminating the harmful

component?

(ii) Licensees (permission, consent, implied consent, frequent known trespassers)

Duty to warn

Of known, dangerous conditions, unlikely to be discovered

Reasonable care otherwise

(iii) Invitee (permission, consent, plus something extra)

Duty of reasonable care

Limited to areas included in the invite

NO liability in areas that are not open to invitee access

In those areas, they become a trespasser

Business invitee (patron, etc)

Public invitee (mass events, etc)

Some states eliminate distinction between licensee and invitee; both =

reasonable care

(iv)Easement/license holders

Must exercise reasonable care

(v) Lease

Lessees assume duty of owner for areas under control

(vi)Free, recreational use (ie: a pond or lake)

Landowner only liable if willful or malicious failure to warn of dangerous

conditions

(vii) Adjacent occupants

Duty of reasonable care to those around you

(viii) Sellers of property

Duty to disclose latent and dangerous defects

(ix)Statuses go mostly to foreseeability

A landowner will not be liable in negligence for the criminal acts of a 3rd

party UNLESS the crime was foreseeable

(d) Emergencies

(i) = reasonable care, allowances made for acting in an emergency

Unless emergency was of defendant’s own making

(e) Statutes = negligence per se

(i) Violations of any statute that cause injury constitute negligence per se (or

automatic fault) if (key is drafters intent):

Plaintiff was member of the class sought to be protected by the statute

The interest was the intended interest to be protected

The harm was the intended harm to be prevented

The harm materialized in the manner that was of drafters concern

2) Breach

(a) Standard = preponderance

(i) For the jury to determine

(b) Res ipsa loquitor = “the thing speaks for itself” or negligence goes to the jury

(i) Must show 3 things:

Type of accident does not normally occur without negligence

The instrumentality that caused it was in defendant’s exclusive control

Plaintiff did not voluntarily contribute to the harm

(ii) Applies with medical teams, auto accidents, etc

3) Causation

(a) Must be both:

(i) Actual cause, and

“but-for” cause

Substantial factor test for multiple defendants

(ii) Proximate cause (“legal cause”)

After actual cause established proximate cause determines legal liability

Foreseeability is key

Intervening forces can sever causation chain (superseding cause)

Except when force or result was foreseeable

4) Damages

(a) Must show ACTUAL damages

(i) Nominal damages not allowed in negligence

(ii) Some injury, harm, illness, physical, mental, emotional

(b) Purely economic loss typically not allowed

(i) Except with negligent misrepresentation

(c) Duty to mitigate

(d) Collateral source credit (insurance payments)

(i) No credit for victim’s own insurance payments

(ii) Credit for defendant’s insurance company payments though

(e) Punitive damages

(i) ONLY allowed when willful, wanton, reckless, or malicious behavior

(f) Types of damages per claim

(i) Personal injury

Pecuniary and

Lost wages, medical expenses,

Non pecuniary damages possible

Pain and suffering, loss of consortium

Eggshell skull rule: take your plaintiff as they come (different from

intentional torts)

Not allowed

Attorney’s fees, interest

(ii) Property damage

Cost of items

Repairs

Loss of use

B) Specific Negligent claims/issues

1) Negligent infliction of emotional distress (NIED)

(a) Carelessness

(b) That caused victim to suffer

(i) Direct NIED

Impact rule = defendant’s act led to physical touching

zone of danger rule (MD & majority) = victim was at risk of death or

serious bodily harm, reasonable fear, and severe emotional distress

special circumstances

Dealings with the dead - transmission of information about, or

handling of corpse of deceased loved one = direct NIED

(ii) indirect NIED

bystander recovery

follows zone of danger rule

as a result of witnessing injury, suffers severe emotional distress

some jurisdictions may recover if not in zone of danger if:

closely related to injured person, and

was present, and

observed it (through any sense), and

suffered severe emotional distress as a result

(c) Severe emotional distress

(i) Some jurisdictions require physical manifestations of emotion distress (for

purposes of MBE, NIED = Yes, physical harm

(ii) Typically no physical requirement

Just ACTUAL damages

2) Survival and wrongful death

(a) Survival suits

(i) Decedent’s estate sues as if decedent had lived

(ii) Recovery for lost wages, medical expenses, pain and suffering

(iii) Most states do not allow recovery for torts on decedent’s intangible

personal interests, such as defamation, malicious prosecution, and invasions of

privacy

(b) Wrongful death

(i) Decedent’s family sues

(ii) Recovery for loss of support, companionship, society, affection

(c) Some states allow both suits to be filed, but no double recovery can occur for lost

wages and loss of support

3) Interference with family relationships

(a) Spousal

(i) Spouse can sue for loss of consortium, companionship, society, affection (sex)

when spouse was injured by negligence

(ii) Can recover pecuniary damages if not already recovered by injured spouse

(b) Parent/child

(i) Some states permit a parent to recover consortium, etc; maybe loss of services

if child contributed income

(ii) NO consortium action for a child on behalf of injury to a parent

4) Respondeat superior/vicarious liability

(a) Employer

(i) Liable for negligent acts of employees within scope of employment

Within time and space, type of act hired to do, motivation to serve

employer’s ends?

Employer’s instructions generally do not absolve them of liability

Not liable for intentional torts unless force is inherent in the job, or the

employer authorizes in a way likely to lead to tort

If the force furthers an interest of the employer, then the employer will

be vicariously liable regardless of failure to follow employer’s express

instructions

Frolic = employer not liable

Detour = employer liable

(ii) Negligent hiring, supervision, etc is a personal, not vicarious liability

(b) Independent contractor

(i) Employers generally not liable for contractor negligence

(ii) Exceptions

Highly dangerous activities

Duty to public at large due to peril created

(iii) Same employer personal liability for negligent hiring

(c) Business partners

(i) Yes vicariously liable

(d) Automobile owners

(i) Typical rule

Negligent entrustment only = if the loaner knows of risk or problems

(ii) Some jurisdictions (NOT MD)

Family use statutes

Liable for any family member’s permissive use

Permissive use statutes

Liable for any permissive user’s negligent acts

(e) Stores/public locations

(i) NOT vicariously liable for business invitee actions

(ii) ONLY duty to warn invitees of known dangerous conditions

(f) Parents (NOT vicariously liable for child’s acts)

(i) Personal negligence for failing to supervise

That is a personal tort, not vicarious

WILL be vicariously liable if know of a child’s violent tendencies and fail

to control them or warn a caretaker

(ii) Generally not vicariously liable in tort

(g) Dram shop

(i) Alcoholic beverage provider liable for patron’s actions based on negligent

serving

(h) Bailor-bailee (NOT vicarious)

(i) Bailor liable for own negligent acts, but not vicariously liable for a bailee’s

5) Immunities from liability

(a) Federal government actors

(i) Federal Tort Claims Act (FTCA) waives immunity for federal government

actors

Exceptions (when immunity applies)

Certain intentional torts, defamation, abuse of process, etc

Certain specific activities, regulation of money, delivery of post,

military service

Discretionary functions, in official duties

(b) State governments waive immunity in about the same way as federal

(c) Municipal governments

(i) Depends of the type of activity

Proprietary, or

No immunity

Operation of a hospital, etc

Governmental activity, in government functions (police, firefighters)

Immunity applies

Exception

Special duty, as stated, express or implied

Requires contact with the individual and gov’t agents and the

individual’s reliance on the duty to act

Ex: person comes forward with information about a crime,

police fail to protect them in the face of explicit threats

(d) Government officials

(i) Immune while performing discretionary duties without malice or improper

purpose

(ii) Not immune while performing cursory functions

(e) Family immunity

(i) Inter-spousal: at common law, but modern law largely extinguished this

immunity

(ii) Parent-child

Reasonable parent standard, or

Immune when providing necessities or exercising parental discipline

But not when intentionally injures, or child is in a car accident

(f) Charitable immunity

(i) Most states have done away with this

C) Joint and several liability (multiple defendants)

1) In concert (joint & several) liability (both parties liable for the whole)

(a) Common plan or scheme and tort occurred within the scope of it, or

(b) Multiple actors, act independently, and their acts come together to produce an

indivisible injury

2) Pure several liability (some jurisdictions)

(a) Only liable for the portion of damages created

(b) Essentially a rejection of joint and several (like pure comparative but with equal

shares)

3) When jointly and severally liable, the victim can recover the whole amount from any

defendant, and the paying defendant can sue to recover contribution percentages from

other defendants

(a) Assumption is equal shares upon contribution, unless a comparative state

D) Indemnification

1) Suppliers have a right of indemnification against future suppliers in strict products

liability

2) Courts may apply indemnification when one defendant causes additional harm, or are

different levels of culpability

E) Defenses to negligence

1) Contributory fault (MD)

(a) Complete bar

(i) Only if acts of tort feaser defendant were negligent as opposed to grossly

negligent or reckless

Contributory negligence is NOT a bar to recovery where plaintiff’s

negligence was not a cause of the injury (ie: negligent with regard to

something else, but the act did not affect the defendant’s negligence in any

way)

Ex: person texting while at stop light gets rear ended – defendant was

sole cause of injury, plaintiff’s texting did not contribute

(b) Some states comparative instead (percentages)

(i) Some pure comparative (by percentage fault)

(ii) Some modified comparative (only if plaintiff was no more than or not as

negligent as defendant)

Sometimes aggregation allowed with multiple defendants

(c) Last clear chance (only relevant as to contributory fault defense)

(i) Even if plaintiff caused the peril, if defendant had last clear chance to prevent,

plaintiff can still recover

Does not apply if defendant did not see the plaintiff or have opportunity to

prevent

Then typical negligence rules apply

(ii) Oblivious peril: if defendant knew of plaintiff’s peril and did not take last

clear chance plaintiff can still recover

(iii) Helpless peril: if defendant knew or should have known of plaintiff’s

helpless condition and did not take last clear chance plaintiff can recover

2) Assumption of risk

(a) Express

(b) Implied

(i) Knowingly, voluntarily, unreasonably encountered risk

(c) Limits

(i) Common carriers = no assumption of risk

(ii) Statutorily protected classes

(iii) Fraud, force, or emergency

III) Strict Liability

A) Abnormally dangerous/ultrahazardous activities

1) Strictly liable when (elements)

(a) Activity is inherently dangerous

(b) Danger cannot be eliminated through reasonable care

(c) Activity is uncommon

2) Examples

(a) Blasting

(b) Airplane liability to landowners on ground

(i) But not to passengers (utmost care, but not strictly liable)

(c) Crop dusting

(d) Ryland’s v Fletcher

(i) Strictly liable for bringing something onto property that would cause mischief

if it escaped (ie: a dam)

B) Animals

1) When on defendant’s property, status of the plaintiff matters

(a) Licensee or invitee: strict liability for wild or abnormally dangerous animals

(b) Trespasser: NO strict liability

(i) Exception: vicious watchdog

2) When animal escapes from defendant’s property, depends on kind of animal

(a) Wild

(i) Only if it is kept on defendant’s property and for propensities inherent in its

feral nature

(b) Domesticated

(i) Only strictly liable for foreseeable propensities of the animal

(ii) Household pet: only if knows or has reason to know of dangerous propensity

C) Defenses to strict liability

1) NOT contributive

2) Comparative maybe

3) Assumption of risk

(a) Complete bar

4) Statutory privilege

(a) When performing an essential public service

IV)Products Liability (negligence, strict liability, breach of warranty)

A) Negligent products liability

1) Must show defendant had a duty that was breached, and the breach caused damages

2) Duty (reasonable care)

(a) Owed by anyone in the chain of distribution (manufacturer, distributor,

wholesaler, retailer)

(i) Retailer will be liable where a product was defective, they failed to use

reasonable care and inspect, and inspection would have discovered the defect

(b) Owed to any foreseeable plaintiff

(i) Extends beyond the final purchaser to any user or bystander

3) Breach

(a) Failure to act with reasonable care in designing, manufacturing, inspecting, and

warning about the product

4) Causation

(a) Must still prove actual and proximate cause

5) Damages

(a) Personal and property damage ok

(b) But NOT purely economic damages

6) Defenses

(a) Contributory

(b) comparative

(c) Assumption of risk

B) Strict products liability (aka, defective products) (requires use in a reasonably

foreseeable way)

1) Must show only that the product was defective

(a) Any actor in the chain of distribution liable

(i) despite apparent lack of culpability

(ii) joint and several

(b) Two types: manufacturing and design

2) Manufacturing defect

(a) Product does not conform to manufacturer’s own standards

(b) Elements

(i) Product has a manufacturing defect

(ii) Which existed when if left defendant’s control

(iii) And caused plaintiff’s injury

(iv)And plaintiff used the product in a reasonably foreseeable way

3) Design defect

(a) Product made in accordance with manufacturer requirements, but is defective

anyway

(b) Elements

(i) Product has a design defect

(ii) Which existed when left defendant’s control

(iii) And caused plaintiff’s injury

(iv)And plaintiff used the product in a reasonably foreseeable way

(c) Two standards

(i) Consumer expectation test:

Did the product meet expectations of the ordinary consumer?

(ii) Cost-benefit test (aka: risk-utility test):

Do the risk and utility of the product balance appropriately?

It typically does NOT if alternative, reasonable alternative designs

existed and were not used

(d) Warnings will not suffice if a product is dangerous

4) Failure to Warn/Lack of warning

(a) Foreseeable risk of harm NOT recognizable by the ordinary consumer AND lack

of or inadequate warnings that would have helped to reduce risk

(b) Exception to liability

(i) Prescription drugs – learned intermediary rule

Discharge of the duty to warn about side effects by informing the

physician

Exception when intermediary unlikely to intervene or physician

involvement is minimal

5) Proof of defect when item was destroyed (like res ipsa loquitor)

(a) Must show that the product ordinarily only fails due to a defect and no other

causes might account for the failure that led to injury

6) Damages

(a) Actual injury and property damages

(b) Not purely economic loss

7) Defenses

(a) Comparative

(b) NOT contributory if use was foreseeable, albeit misuse, modification or alteration

(c) Assumption of risk

(i) Complete bar

(d) Compliance with government standards

(i) Partial defense

(ii) But failure to comply can help establish defectiveness element

(e) Contract-based defenses (disclaimer, notice, etc)

(i) NO bar to recovery

C) Breach of warranty (purely economic damages OK)

1) Express Warranty

(a) Seller’s representation of fact as part of the basis of the bargain

(i) Can be in an advertisement

(b) Defenses

(i) Assumption of risk

(ii) Comparative

(iii) Failure to give timely notice

(iv)Certain product misuse

(v) NOT contributory

(vi)NOT disclaimers

2) Implied warranty of merchantability

(a) That the product was fit for its ordinary purposes

(i) Warranty given by a merchant

(ii) May be silent warranty

3) Implied Warranty of Fitness for particular purpose

(a) Must be more express

(i) Merchant affirms the product will work for a specific use, or

(ii) Knows of the customer’s misunderstanding and merchant is silent

4) Damages

(a) Personal and property injury

(b) AND PURELY ECONOMIC damages too

V) Nuisance

A) Private nuisance Elements

1) Conduct

(a) May be intentional, reckless, negligent, or whatever

2) That substantially and unreasonably interfered

(a) Objective reasonableness test in the community

(b) Hypersensitivities do NOT matter

(i) Note: beware for questions that look like hypersensitivity, but are not

If the sensitivity is one that is common to many, then it does not count as a

hypersensitivity

(c) Injury inflicted must outweigh benefit to defendant

3) With use and enjoyment of property

(a) Anyone with a possessory right has standing

(i) NOTE: an owner not living on the premises and therefore not in possession. A

defendant will NOT be liable to someone for whom the nuisance is not

substantially and unreasonably interfering with their use and enjoyment

B) Public nuisance elements

1) Unreasonable interference

2) That affects a right common to all members of a community

(a) Only government may bring suit unless member of the relevant community

suffers unique personal injury

C) Damages and remedies

1) Actual damages

(a) Includes any depreciation of value

2) Injunctive relief (dependent on hardships, unless nuisance was purposeful)

3) Abatement (self-help)

(a) Private: injured persons have a right to enter property to remove nuisance with

notice and refusal

(i) Level of force must be reasonable

(ii) Self-helper liable for actual damages caused in removal

(b) Public: No right of abatement unless suffering a unique injury

D) Defenses

1) Depend on level of culpability

(a) If negligent, negligence defenses apply

(b) Likewise if intentional, intentional defenses apply

2) Compliance with regulation (partial defense)

3) Coming to the nuisance

4) Blocking access to light is not a nuisance

VI)Defamation

A) Elements

1) Defamatory, false language

2) Concerning the plaintiff

(a) Can be an organization or corporation if small enough to be identified

3) Published to a 3rd party who understood defamatory content, and

4) Causation

5) damages to plaintiff’s reputation

B) Defamatory language

1) Diminishes respect, esteem, or good will, or deters others from association with

2) May be defamatory on its face (explicit), or by innuendo (when taken in context or

with extrinsic facts)

3) MUST be false

(a) And defendant knew it was false, unless

(i) About a public figure or official, requires malice and either

Knowledge of falsity, or

Reckless disregard of falsity

(ii) Private person

On matters of public importance

Knowledge of falsity, or

Negligent disregard of falsity

All other private matters require only

Negligence as to truth or falsity

(iii) Made by a journalist

Requires negligence as to truth or falsity

4) Forms

(a) Libel = written

(b) Slander = spoken

C) Of or concerning plaintiff

1) Reasonable person standard

2) Concerning particular plaintiff

3) Holding up to scorn and ridicule

D) Publication

1) Only need be intentional or negligent communication to someone else

(a) But not if the party learned of it through no fault of the defendant (eavesdropper)

2) It IS communicated when the speaker could reasonably foresee the statement being

overheard by a third party (ie: crowded room, etc)

E) Causation

1) Fault depends on who the victim is

2) Public figure or official

(a) Actual malice required

(i) Defendant knew of the falsity or

(ii) Acted with reckless disregard for truth or falsity

3) Limited public figure, one who voluntarily enters a public controversy

(a) Treated as a public figure with regard to statements concerning the public issue

(b) As a private figure otherwise

4) Private persons

(a) Statements on matters of public importance

(i) Must be false and

(ii) Negligently or maliciously made

(b) Other matters

(i) Require only negligence as to truth or falsity of the matter

F) Damages

1) Libel:

(a) general damages presumed

(i) not awarded to public figures on matters of public concern unless there was

malice

(ii) not presumed if extrinsic facts necessary to prove defamatory nature, if this is

the case, special damages must be shown

(iii) but not when statement would have been slander per se if proven

slander per se

re: abilities in profession, business, or trade

unchastity of a woman

about a loathsome disease

charges guilt for crime of moral turpitude

(b) special damages may also be recovered for economic loss

(c) personal injury, including emotional distress

2) Slander

(a) Special damages must be proven unless slander per se

G) Defenses

1) Truth = complete defense

2) Consent = subject to scope

3) Privileges

(a) Judicial proceedings

(b) Legislative proceedings – speech or debate clause

(c) Spousal communications

(d) Media entities required to publish

4) Qualified privileges (can be lost with malice)

(a) About an important public interest

(b) In the interest of the publisher/defendant

(c) In the interest of the third party/recipient of the communication

VII) Invasions of privacy

A) Misappropriation of the right to publicity

1) Unauthorized use

2) Of an individual’s image or likeness

3) For commercial gain

B) Unreasonable intrusion on affairs or seclusion

1) Intrusion (physical or otherwise)

2) In private affairs, solitude, seclusion

3) Objectionable to a reasonable person

C) False light (requires malice if a public interest matter)

1) Making objectionable facts

2) About the plaintiff

3) That casts them in a false light

4) Objectionable to a reasonable person

D) Public disclosure of private facts

1) Elements

(a) Public disclosure

(b) Of private facts

(i) Must be true facts

(c) Which a reasonable person of ordinary sensibility would object to

2) Defenses

(a) NOT truth, because it must have been true

(b) Disclosure was of newsworthy or legitimate public interest

E) Defenses

1) Absolute and qualified privileges apply as in defamation

2) Consent

(a) But not mistake as to consent

3) Truth NOT a defense in invasions of privacy

VIII) Misrepresentation

A) Elements

1) Misrepresentation of FACT

(a) Omission or statement

(i) Omission only if duty to disclose arises

Active concealment or failure to correct deception

Special relationship

2) With scienter

(a) Intentional or reckless

3) Intent to induce plaintiff to act on the basis of the representation

4) Causes plaintiff to act

5) Plaintiff reliance was justified

6) Damages

(a) Actual economic loss

(b) Consequential damages if proven with certainty

(c) NO nominal damages

B) Negligent misrepresentation

1) Elements

(a) Careless misrepresentation

(b) Breaching a duty owed

(c) Causing justifiable reliance

(i) Not liable for an unforeseeable use of the misrepresentation, even if aware of

the third party

(d) And damages

(i) Out of pocket reliance costs

(ii) Consequential damages with certain proof

2) Typically limited to commercial transactions

3) Negligence defenses available

IX)Business torts

A) Intentional interference with business relations or contracts

1) Elements

(a) Defendant knows of contractual (not at-will) relationship or valid expectancy of

business

(b) Intentionally interferes

(i) Can be prevention or making performance more difficult

(ii) In excess of fair competition and fair expression in the marketplace

(c) Resulting in loss of contract or valid business

(d) And damages

2) Privilege if it is a proper attempt to obtain business or to protect defendant’s own

business interests, especially where only an expectancy was involved

3) NOTE: be careful when dealing with an attorney-client contract; a client is always

entitled to institute settlement proceedings on their own without their attorney. The

defendant party will only have committed tortuous interference with contract if

actively pursued settlement despite representation of counsel.

B) Theft of trade secrets

1) Valid trade secret

2) With reasonable precautions to protect it

3) And Defendant acquired it by improper means, intentionally

4) Damages

(a) Actual damages

(b) Punitive, if appropriate

(c) Emotional distress

C) Trade libel

1) Injurious statements

(a) Publication

(b) Derogatory

2) To business or products

(a) About title or quality of business

3) Damages to a business relationship

(a) General, not special

X) Wrongful institution of legal proceedings

A) Malicious prosecution

1) Elements

(a) Intentional and malicious

(b) Institutes, pursues, or causes to be instituted

(c) For improper purpose

(d) A legal action without probable cause

2) Prosecutors and judges immune from civil liability

B) Abuse of process

1) Misuse of the power of the court

2) Damages must be proven