Title SlideTitle Slide

INTENTIONAL TORTS AND INTENTIONAL TORTS AND DEFENSES TO DEFENSES TO

INTENTIONAL TORTSINTENTIONAL TORTS

TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAM

BUT FIRST, A QUICK REVIEWBUT FIRST, A QUICK REVIEW

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BROAD CATEGORIES OF TORT BROAD CATEGORIES OF TORT LAW:LAW:

•NEGLIGENCE

•INTENTIONAL TORTS

•STRICT LIABILITY

NEGLIGENCENEGLIGENCE

The failure to exercise The failure to exercise ordinary care.ordinary care.

ELEMENTS OF NEGLIGENCE:ELEMENTS OF NEGLIGENCE:

•DUTY OF CARE

•BREACH OF DUTY BY TORTFEASOR (UNREASONABLE CONDUCT

•CAUSATION OF DAMAGES TO VICTIM ACTUAL CAUSE

PROXIMATE CAUSE

•DAMAGES TO VICTIM (ACTUAL HARM)

Another review…Another review…

CAUSATION (TWO CAUSATION (TWO PRONGS)PRONGS)

CAUSE IN FACTCAUSE IN FACT

and and

PROXIMATE CAUSEPROXIMATE CAUSE

FIRST PRONG: CAUSE IN FACT

ACTUAL CAUSE TEST“BUT FOR…______…NO INJURY WOULD HAVE

OCCURRED”

SUBTANTIAL FACTOR TESTMULTIPLE PARTIES INVOLVED IN BRINGING ABOUT AN INJURY“X and Y were substantial factors in bringing about the alleged injury.”

SECOND PRONG: PROXIMATE CAUSE (aka LEGAL CAUSE)

JOINT AND SEVERAL LIABILITYMULTIPLE PARTIES ACT TOGETHER TO CAUSE INJURY

WAS THE TYPE OF INJURY REASONABLY FORESEEABLE?

REVIEW OF REVIEW OF PREMISES LIABILITYPREMISES LIABILITY

What is an owner or an occupier’s What is an owner or an occupier’s liability for injuries that occur while a liability for injuries that occur while a person is on their property?person is on their property?

11 TrespasserTrespasser (person wrongfully on land) = no duty, (person wrongfully on land) = no duty, with exception for trespassing children.with exception for trespassing children.

2 LicenseeLicensee (person with express or implied permission to (person with express or implied permission to be on land) = duty of reasonable care which be on land) = duty of reasonable care which requires requires correcting known dangerscorrecting known dangers on the land. on the land.

3 InviteeInvitee (business guest) = duty of reasonable care which (business guest) = duty of reasonable care whichrequires requires repairing defects he knows or should knowrepairing defects he knows or should knowofof and discovering/correcting unknown dangers. and discovering/correcting unknown dangers.

CALIFORNIA IS DIFFERENT!CALIFORNIA IS DIFFERENT!

CALIFORNIA LAW APPLIES TRADITIONAL NEGLIGENCE STANDARDS TO DETERMINE LAND OWNER/OCCUPIER LIABILITY

CALIFORNIA CIVIL CODE CALIFORNIA CIVIL CODE SECTION 847SECTION 847

PROVIDES LAND OWNER IMMUNITY FROM LIABILITY FROM ANY PERSON COMMITTING CERTAIN LISTED FELONIES (CURRENTLY 25) (FELONY = 1 YEAR OF JAIL TIME OR MORE.) LESSOR INCLUDED OFFENSES and MISDEMEANORS ALSO PROVIDE LAND OWNER IMMUNITY.

Sampling of the list: MURDER, RAPE, ROBBERY, LEWD ACTS, ASSAULT WITH A DEADLY WEAPON, KIDNAPPING, DRUG DEALING, GRAND THEFT.

CALIFORNIA PREMISES LIABILITYCALIFORNIA PREMISES LIABILITY

FIRST – GENERAL NEGLIGENCE ANALYSIS

HOW TO ANALYZE CALIFORNIA LAND OWNER LIABILITY

SECOND – ANY DEFENSES AVAILABLE TO DEFENDANT* WAS THE PLAINTIFF COMMITTING A CRIME?

DUTY TO FORESEEABLE PERSONSBREACHCAUSATION ACTUAL CAUSE FORESEEABLE INJURYDAMAGES

Vicarious LiabilityVicarious Liability

Where someone is held legally Where someone is held legally accountable for the negligence of accountable for the negligence of another person acting on his or another person acting on his or her behalf, even though the first her behalf, even though the first person was not involved in the person was not involved in the act, did nothing to encourage the act, did nothing to encourage the act, and may even have act, and may even have attempted to prevent it.attempted to prevent it.

Vicarious Liability of Vicarious Liability of EmployersEmployers

Respondeat SuperiorRespondeat Superior (“let the master (“let the master answer”):answer”): an employer is responsible for an employer is responsible for most harm caused by an employee most harm caused by an employee acting within the course and scope of acting within the course and scope of employmentemployment..

a)a) Coming and going ruleComing and going rule

b)b) Frolic and detour ruleFrolic and detour rule

c)c) Independent contractorsIndependent contractors

Coming and Going Coming and Going RuleRule

Employers not usually held liable Employers not usually held liable for employees traveling to and for employees traveling to and from work. Exception – if from work. Exception – if employee is performing work-employee is performing work-related activities while coming or related activities while coming or going from work.going from work.

Frolic and Detour Frolic and Detour RuleRule

An employee making a MINOR An employee making a MINOR deviation from business for deviation from business for personal purposes is still acting personal purposes is still acting within the scope of work. If the within the scope of work. If the deviation is SUBSTANTIAL, the deviation is SUBSTANTIAL, the employer is not responsible.employer is not responsible.

Independent Independent ContractorContractor

Generally, an IC is someone who Generally, an IC is someone who acts according to a contract. The acts according to a contract. The IC controls how they accomplish IC controls how they accomplish the job. Employer is not held liable the job. Employer is not held liable for IC’s negligent acts. Two broad for IC’s negligent acts. Two broad exceptions:exceptions:IC engaged in inherently dangerous activities – i.e. blasting.The duty engaged in by IC is simply nondelegable – i.e. putting up a fence around a construction site.

Motor Vehicle Vicarious Motor Vehicle Vicarious LiabilityLiability

The general rule is that an auto The general rule is that an auto owner is not vicariously liable for the owner is not vicariously liable for the tortious conduct of another person tortious conduct of another person driving their auto.driving their auto.

BUT WAIT – Don’t forget about your family.

NEGLIGENT INFLICTION OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS EMOTIONAL DISTRESS

(“NIED”)(“NIED”)

(1)Outrageous conduct by the defendant

(2)that the defendant should have anticipated

would produce (3)significant and reasonably foreseeable emotional injuries to a victim,

(4) thus, breaching a duty of reasonable care

to avoid causing such emotional harm to, (5) a reasonably foreseeable victim.

CALIFORNIA REQUIRES THAT A BYSTANDER BE RELATED TO THE INJURED PARTY TO RECOVER FOR EMOTIONAL DISTRESS. DILLON v. LEGG, 68 Cal.2d 728

CALIFORNIA LAW STRESSES THE FORESEEABILITY ASPECT OF NEGLIGENT ACTS.

NEGLIGENCE PER SENEGLIGENCE PER SE

Behavior or conduct that is presumed negligent as a matter of law because it violated a statute or ordinance.

Example – speeding laws.

DEFENSES TO DEFENSES TO NEGLIGENCENEGLIGENCE

1.1. Contributory Negligence - At common law = Contributory Negligence - At common law = defendant out of luck, modern view favors defendant out of luck, modern view favors comparative analysis.comparative analysis.

2. Last Clear Chance - Essentially Plaintiff’s rebuttal to the defense of contributory negligence

4. COMPARATIVE NEGLIGENCE - Apportionment of fault – offsets ones own negligence against another

3. ASSUMPTION OF RISK 1 – Voluntary assumption of a known risk 2 – A full appreciation of the danger involved in facing the risk

5. STATUTE OF LIMITATIONS

But first, a word from But first, a word from our sponsor…our sponsor…

The Johnson family recently purchased a “fixer upper” home The Johnson family recently purchased a “fixer upper” home in Sacramento. Unbeknownst to them, the previous in Sacramento. Unbeknownst to them, the previous owner, a die-hard survivalist, now off to parts of the owner, a die-hard survivalist, now off to parts of the world unknown, had hidden dynamite underneath the world unknown, had hidden dynamite underneath the floor boards. The Johnson’s knew of his survivalist floor boards. The Johnson’s knew of his survivalist practices as they had found two false walls that had practices as they had found two false walls that had emergency-medical equipment and water purifiers emergency-medical equipment and water purifiers hidden in them. During the Johnson’s renovation efforts, hidden in them. During the Johnson’s renovation efforts, they invited over their neighbor to help them tear up the they invited over their neighbor to help them tear up the old living-room floor. During the removal of the boards, old living-room floor. During the removal of the boards, Mr. Johnson’s hammer caused two sticks of hidden Mr. Johnson’s hammer caused two sticks of hidden dynamite to explode. The explosion injured Mr. Johnson dynamite to explode. The explosion injured Mr. Johnson and his son, along with his neighbor, Mr. Isosue. Two and his son, along with his neighbor, Mr. Isosue. Two years later Mr. Isosue serves his personal injury lawsuit years later Mr. Isosue serves his personal injury lawsuit on the Johnsons. They come to you for advice. Please on the Johnsons. They come to you for advice. Please advise as to the following only:advise as to the following only:

1.1. Was Mr. Isosue’s injuries caused by the Johnson’s Was Mr. Isosue’s injuries caused by the Johnson’s negligence?negligence?

2.2. Any potential defenses the Johnson’s may have.Any potential defenses the Johnson’s may have.

Negligence is the failure to exercise reasonable care. Negligence requires duty, breach, causation, and damages. Here, under common law, the Johnson’s owed Isosue a duty to warn of all known dangers, as he was a licensee. Under California law, the Johnson’s owed Isosue a duty of reasonable care. In either case, Isosue will likely claim that the Johnson’s breach of that duty, namely, the Johnson’s failure to warn him of survivalist issues led to his injuries. The key question here is causation, or whether or not the Johnsons caused his injuries. Causation requires two elements be met:

Actual Cause – But for the Johnson’s inviting him over to assist in remodeling their home, and failing to warn him of potential dangers, Isosue would not have been injured by the explosion. Or, but for Mr. Johnson’s hammer igniting the dynamite, Isosue would not have been injured.

Proximate Cause – The focus on whether the Johnson’s proximately caused Isosue’s injuries rests on how foreseeable Isosue’s injuries were. Here, the facts show that the Johnsons knew of the former owner’s survivalist mentality as they had discovered emergency-medical equipment and water systems behind false walls. Isosue will likely argue that the type of injuries he sustained were foreseeable as the Johnsons had prior notice and should have expected other dangerous survivalist objects to be hidden in the house.

However, the facts do not show that anything dangerous was found by the Johnsons, in fact, whatever objects were found, were there for emergencies. Also, everything was found in false walls - not under any floor boards. It is very unlikely that finding medical and water supplies, objects intended to preserve life, would cause anyone to suspect that dangerous dynamite would be hidden elsewhere.

Therefore, the Johnsons can successfully argue that they did not legally cause Mr. Isosue’s injuries and are not liable for negligence.

INTENTIONAL TORTS AND INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTSDEFENSES TO INTENTIONAL TORTS

INTENTIONAL TORTSINTENTIONAL TORTS

The deliberate commission of an The deliberate commission of an injurious act to another person injurious act to another person or that person’s propertyor that person’s property

The “act” required = volitional The “act” required = volitional movementmovement

Intent may be a) Intent may be a) specificspecific (intend (intend to bring about consequence, or to bring about consequence, or b) b) generalgeneral (substantial (substantial certainty)certainty)

Injuries to PersonsInjuries to Persons

Battery:Battery: an intentional, unconsented an intentional, unconsented touching of another person in an touching of another person in an offensive or injurious manner. Also offensive or injurious manner. Also includes touching of intimately includes touching of intimately connected objects. I.e. - A purse or a connected objects. I.e. - A purse or a cane.cane.

Assault:Assault: a threatened or attempted a threatened or attempted battery. (an incomplete battery)battery. (an incomplete battery)

BATTERYBATTERY

1.1. Harmful or offensive contactHarmful or offensive contact

2.2. To plaintiff’s personTo plaintiff’s person

3.3. IntentIntent

4.4. CausationCausation

NOTE: NOTE: Harmfulness and offensiveness Harmfulness and offensiveness are judged by the are judged by the

reasonable reasonable person person standard.standard.

ASSAULTASSAULT

1.1. Act by defendant creating a Act by defendant creating a reasonable apprehension in plaintiff.reasonable apprehension in plaintiff.

2.2. Of immediate harmful or offensive Of immediate harmful or offensive contactcontact

3.3. IntentIntent

4.4. CausationCausation

NOTE: If defendant has the apparent NOTE: If defendant has the apparent ability to commit a battery – good ability to commit a battery – good enough. Apprehension is not enough. Apprehension is not fear/intimidation.fear/intimidation.

FALSE FALSE IMPRISONMENTIMPRISONMENT

1.1. Act or omission by defendant that Act or omission by defendant that confines or restrains,confines or restrains,

2.2. To a bounded areaTo a bounded area

3.3. Without consentWithout consent

4.4. No reasonable means of escapeNo reasonable means of escape

False Imprisonment False Imprisonment cont’d.cont’d.

Bounded area – Freedom of movement limited in Bounded area – Freedom of movement limited in all directions. Must have no all directions. Must have no reasonablereasonable means of means of escape escape knownknown to plaintiff. to plaintiff.– Physical barriersPhysical barriers– Physical forcePhysical force– Threats of forceThreats of force– Failure to releaseFailure to release– Invalid use of legal authorityInvalid use of legal authority

Length of time is irrelevant.Length of time is irrelevant. Future threats and moral pressure are insufficient. Future threats and moral pressure are insufficient.

Plaintiff must KNOW of or be harmed by the Plaintiff must KNOW of or be harmed by the

confinement.confinement.

INTENTIONAL INFLICTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSOF EMOTIONAL DISTRESS

Act by defendant amounting to Act by defendant amounting to EXTREMEEXTREME and and OUTGRAGEOUSOUTGRAGEOUS conduct conduct

Intent or recklessnessIntent or recklessness CausationCausation Damages – severe emotional distressDamages – severe emotional distress

Note: Recklessness = indifference to the Note: Recklessness = indifference to the consequences.consequences.

FRAUD AND FRAUD AND MISREPRESENTATIONMISREPRESENTATION

FRAUDFRAUD MISREPRESENTATIONMISREPRESENTATION

False statement False statement intended to intended to deceivedeceive

False statement False statement intended to deceiveintended to deceive

Knowledge of Knowledge of falsity of falsity of statementsstatements

Knowledge of falsity of Knowledge of falsity of statementsstatements

Statements Statements designed to entice designed to entice surrendering surrendering something of valuesomething of value

Innocent party suffers Innocent party suffers some damagesome damage

Innocent party is Innocent party is injuredinjured

ABUSE OF PROCESSABUSE OF PROCESS(& malicious (& malicious prosecution)prosecution)

Misuse of a legal proceeding, or Misuse of a legal proceeding, or threat of such misusethreat of such misuse

Misuse to achieve Misuse to achieve unlawfulunlawful objectivesobjectives

Injury to the victim as a result of Injury to the victim as a result of the misusethe misuse

NOTE: Filing mechanic’s liens, NOTE: Filing mechanic’s liens, abusing a child custody hearing…abusing a child custody hearing…

Invasion of privacyInvasion of privacyDefined: Public exploitation of another’s Defined: Public exploitation of another’s

private affairs in an unreasonably private affairs in an unreasonably intrusive manner.intrusive manner.

Courts currently recognize 4 hybrids of Courts currently recognize 4 hybrids of invasion of privacyinvasion of privacy

1.1. Appropriation – wrongful takingAppropriation – wrongful taking2.2. Unreasonable intrusionUnreasonable intrusion3.3. Public disclosure of private facts – Public disclosure of private facts –

unauthorized public revelation - truth is unauthorized public revelation - truth is not a defense not a defense

4.4. False light in the public eye – spurious False light in the public eye – spurious opinions or statements.opinions or statements.

NOTE: Objectionable to the reasonable NOTE: Objectionable to the reasonable person.person.

DEFAMATIONDEFAMATIONLIBEL and SLANDERLIBEL and SLANDER

Defamation = Verbal communication Defamation = Verbal communication of a false and disparaging statement of a false and disparaging statement to a third party.to a third party.

Libel = Written defamation.Libel = Written defamation.

1.1. Written or verbal statementWritten or verbal statement2.2. False and defamatory (hint – defenses…)False and defamatory (hint – defenses…)3.3. Communication to third partyCommunication to third party4.4. Harm to victim’s reputation in the Harm to victim’s reputation in the

communitycommunity

Reputation in the Reputation in the community?community?

1.1. Can be comprised of “one” Can be comprised of “one” other person.other person.

2.2. Can be comprised of a Can be comprised of a handful of close handful of close associates.associates.

3.3. Or can be the nation.Or can be the nation.

What about public What about public figures?figures?

Movie stars, high-level government Movie stars, high-level government employees, television celebrities.employees, television celebrities.

These individuals must prove These individuals must prove actual actual malice – malice – high standard of proof high standard of proof required.required.

Actual malice Actual malice = Knowledge that the = Knowledge that the statement was false, or a reckless statement was false, or a reckless disregard as to the falsity of disregard as to the falsity of statement.statement.

SLANDER PER SESLANDER PER SE

Per se = automatic or presumed.Per se = automatic or presumed.

Some words or statements are by Some words or statements are by themselves defamatory and no injury themselves defamatory and no injury or damage are required.or damage are required.

1.1. Imply criminal conductImply criminal conduct

2.2. Harmful to a businessHarmful to a business

3.3. Loathsome and Loathsome and communicable communicable diseases.diseases.

DEFENSES TO DEFENSES TO INTENTIONAL TORTSINTENTIONAL TORTS

Truth Truth PrivilegePrivilege ConsentConsent

More later on…More later on…

Intentional torts Intentional torts Injuries to propertyInjuries to property

Trespass to landTrespass to land Trespass to chattelTrespass to chattel ConversionConversion

Others in the book - Others in the book - – Toxic tortsToxic torts– Slander of title Slander of title – Commercial disparagementCommercial disparagement– Defamation by computerDefamation by computer

Trespass to landTrespass to land

Required elements:Required elements:

1.1. Physical invasion of plaintiff’s Physical invasion of plaintiff’s real real property.property.

2.2. IntentIntent

3.3. CausationCausation

Trespass to land Trespass to land cont’d.cont’d. Real property includes the surface, Real property includes the surface,

airspace, or subterranean space for a airspace, or subterranean space for a reasonable distance.reasonable distance.

Defendant only needs to have intended Defendant only needs to have intended to enter on that piece of land – doesn’t to enter on that piece of land – doesn’t need to know who owned it.need to know who owned it.

Invasion may be made by a person or Invasion may be made by a person or object (such as a baseball.) Intangible object (such as a baseball.) Intangible invasion may lead to a nuisance action – invasion may lead to a nuisance action – later class.later class.

Trespass to Trespass to chattelchattel

Required elements:Required elements:

1.1. An act that interferes with An act that interferes with plaintiff’s right of possession in plaintiff’s right of possession in the chattelthe chattel

2.2. IntentIntent

3.3. CausationCausation

4.4. DamagesDamages

Trespass to chattel Trespass to chattel cont’d.cont’d.

Two types of interference to right to Two types of interference to right to possess:possess:– Intermeddling (direct damage)Intermeddling (direct damage)– DispossessionDispossession

DamagesDamages– Actual damages – not necessarily to the Actual damages – not necessarily to the

chattel, but at least to the chattel, but at least to the possessory rightpossessory right – are required.– are required.

CONVERSIONCONVERSION

Required elements:Required elements:– Act that interferes with plaintiff’s Act that interferes with plaintiff’s

right of possessionright of possession– The interference is The interference is so serious that it so serious that it

warrants requiring defendant to pay warrants requiring defendant to pay the chattel’s full valuethe chattel’s full value

– Intent, andIntent, and– CausationCausation

Conversion Conversion continuedcontinued

Acts of conversion – include wrongful Acts of conversion – include wrongful acquisition (theft), wrongful transfer, acquisition (theft), wrongful transfer, wrongful detention, and substantially wrongful detention, and substantially changing, damaging, or misusing a chattel.changing, damaging, or misusing a chattel.

Seriousness of Interference – The longer the Seriousness of Interference – The longer the withholding period and extensive use, the withholding period and extensive use, the more likely it is a conversion. Lesser more likely it is a conversion. Lesser interference = trespass to chattels.interference = trespass to chattels.

Only tangible personal property qualifies.Only tangible personal property qualifies. Plaintiff can ask for $$$ or recovery of Plaintiff can ask for $$$ or recovery of

chattel.chattel.

That’s it for tonight!That’s it for tonight!

Don’t forget to take a Don’t forget to take a practice written exam practice written exam home…home…