INTENTIONAL TORTS
INTENT: desires results or is sub. certain that it will occur. If accident
or recklessnessnegligence. Mistake, insanity (Williams v. Kearbey)
infancy (Garrett v. Dailey) not a defense as long as defendant knows the
act was wrong
TRANSFERRED INTENT: battery, assault, false imprisonment,
trespass to chattel/land. Xfers from person to person and tort Rst: only
xfers intent b/w batt&asslt and Xfers false imprisonment from intended
victim to inadvertent victim.
MISTAKE DOCTRINE: Rst: no excuse for reasonable mistake for
trespass to land and for trespass to chattel and conversion
BATTERY: D intends (desire/subcert) to cause harmful or offensive
contact. Don’t need intent to harm, just intent and accomplishment of
offensive or harmful touching. If accident  neg. Contact need not
physically touch body. Smoke capable of making harmful contact
Radiation Exposure requires proving actual harm Sex w/out disclosing
HIV is battery. Victim doesn’t have to be conscious of D’s act. Motive
is irrelevant so long as society defines the contact as harmful or
offensive Doctor operates on unconscious patient w/o consent. Obj. std.
is what RP deems offensive. D’s action may be direct or indirect legal
cause of the harmful or offensive contact to victim’s body, or something
attached/closely associated. (i.e. plate she is holding). Hypersensitivity:
battery if known and physical injury occurs. No battery if unavoidable
(subway/elevator) and only psychological injury is claimed.
ASSAULT: Trad, D intends (desire/subcert) to cause reasonable
apprehension of immediate harmful or offensive contact. Accident 
not assault but maybe NIED. Victim must be conscious of D’s act. D
must have apparent (if not actual) ability to cause imminent harmful or
offensive contact. Split: Reasonable apprehension. Maj: always. Min:
R2T: eliminates the “reasonable” req. (D purposefully exploiting P’s
gullibilityliable). Threat must be immediate, not forward-looking,
past event, or conditional (w/o overt act – but no assault for brandishing
a stick and saying “I’d hit you with this if that cop wasn’t over there).
Split: immediate harm or offensive contact. Maj: mere words not enough
for imminent threat, need overt action. Min/R2d: words sometimes
enough if accompanied by apparent ability of D. Fear is not required,
just knowledge of imminent harmful or offensive contact.
FALSE IMPRISONMENT: D unlawfully and intentionally causes
confinement or restraint of victim w/n a bounded area. Victim must be
aware of confinement, in area bounded in all directions. Victim must not
be free to proceed in any direction at all (but area can be large – entire
city or state). Confinement  physical barriers (all directions); force or
threat of immediate force; omission where D has duty to act. Victim’s
reasonable escape bars D from liability. Exceptions to escape: victim
must be heroic or endure excessive embarrassment/discomfort to escape,
or is unaware of means of escape. D is liable for (threat of immediate)
force against victim or their companions or chattel, or by D’s omission.
Split: Awareness of confinement. Maj/Trad: victim must be conscious of
confinement, Rst: not required if victim is harmed. Exception to
conscience: infancy/incompetency (don’t need to be aware. D still
liable). No minimum time of confinement required Shopkeeper privilege
applies. Future threats, moral pressure, economic coercion not sufficient
for FI. (but see Dupler finding FI for marginal threats of immediate force
accompanied by economic coercion). FI compensates for psychological,
physical, and economic injury occasioned by the imprisonment.
FALSE ARREST: where D confines victim by unlawful assertion of
legal authority. Victim must submit to arrest. Not FA if: pursuant to
valid warrant. Police w/ reasonable suspicion. Private citizen ONLY if
suspicion of felony and felony actually occurred (allows for mistake only
if felony actually happened). Both privileged for misdemeanors
constituting breach of the peace occurring in their presence.
TESPASS TO CHATTEL: D’s act must intentionally damage the
chattel, deprive the possessor of its use for a substantial period of time,
or totally dispossess the chattel from the victim. Bad intent is not
required; mistake doctrine. Trivial interference  not liable. Rst: A w/o
privilege touches B’s dog, causing the dog to bite B, A is liable for
injury.
CONVERSION: an intentional exercise of dominion and control over a
chattel which so seriously interferes with the right of another to control it
that the actor may justly be required to pay the other the full value of the
chattel. Shopkeeper unknowingly accepting stolen property is liable.
MALICIOUS PROSECUTION/INSTUTION OF CIVIL
PROCEEDING: intentional (1) institution of civil proceedings against
victim, (2) termination favorable to arrested/sued victim (if case not
dropped), (3) absence of probable cause for prosecution/institution, (4)
improper purpose or malice of D, (5) damages. Split: malice required?
Maj/Trad: Yes Min: No, improper purpose is sufficient.
Prosecutors/judges are immune. Police/private are not
ABUSE OF PROCESS: intentional misuse of civil/crim. process for
ulterior purpose resulting in damage to victim (i.e. subpoena to keep
them away from important meeting)
FRAUDULENT MISREPRESENTATION: intentional or reckless
misrepresentation which induces a victim’s reliance and causes
economic damage. Provides for purely economic loss when there is (1)
material misrepresentation (2) D knew the statement was false or made it
with reckless disregard as to its truth or falsity (3) D intended to induce
reliance (4) the misrepresentation caused the P's justifiable reliance (5)
Pecuniary damages resulted to the P. (1) – past or present fact or
intention that a reasonable person (or specific P with knowledge from D)
would attach importance to in the transaction, (2) – D knew the
misrepresentation was false or acted with reckless disregard as to its
truth or falsity, (3) – victim must be intended recipient or a victim the D
knows will rely on in the same type of transaction, (4) – misrep must
have caused reliance and unforeseeable losses are not recoverable, and
the misrep cannot have been immaterial, mere opinion, or obviously
false, (5) most courts allow additional consequential damages, such as
physical injuries caused by the misrep and, where malice is proven,
punitive damages (damages for mental distress usually not allowed)
Split: maj: award pecuniary damages based on the “benefit of the
bargain” if the misrep had been true. Min: award only the victim’s “out
of pocket” losses.
IIED: D engages in (1) outrageous and extreme conduct (2) with intent
or recklessness to cause P extreme mental distress, (3) which P actually
suffers. Outrageous and extreme: beyond all possible bounds of decency.
Rudeness or callous offensiveness is insufficient. Vulnerability of
victim, knowledge of hypersensitivy, and relationship to D is considered
(cruelty to child, elderly, boss versus employee). Courts reluctant to
include sexual and racial harassment; more likely of IIED if pattern, less
likely if it happened once (Jones v. Clinton). Split: Extreme mental
distress: physical manifestation (heart attack, stomach trouble caused by
stress or shock) needed? Maj/Rst: No Min: Yes. Exception: common
carriers, innkeepers, public utilities are liable for intentional gross insults
to patrons. Doesn’t include restaurants, theatres. P must be a patron but
doesn’t need to have bought a ticket, or prove outrageous conduct or that
P actually suffered severe distress. Public Figure Standard: must prove
NY Times malice, knowledge or reckless disregard toward the truth or
falsity of the assertion. Prevents public figures from using IIED to evade
D’s free speech rights (Hustler v. Falwell, negligence alone isn’t
enough). Split: Third party recovery, in addition to satisfying tort, must
Maj:(1) be close relative of intended victim 2) is present at the scene (3)
D knows close relative is present. Min/Rst: relatives who are present w/o
physical harm, non-relatives present who suffer physical harm.
II W/ CONTRACT OR ECON. EXPECTATIONS: (1) Requires valid
K or legitimate EE between P and 3rd person, potential K or economic
profit is insufficient (2) D has knowledge/proof of the valid K or EE (3)
D intents to interfere w/ K or EE [Rst: either purposeful interference or a
substantial certainty that interference will occur; some courts: intent be
purposeful] (4) D causes interference (5) damages to P [economic/
mental/punitive]. Bring up fraud (if statements made to 3 rd party were
false). Contracts at-will are grouped with EE. Burden of proof if
interference was justified or proper is on: Maj: D; Min/CA: purposeful
only rather than knowledge. Even if one doesn’t want to hurt the other
but knows by their actions that they will, liable; an increasing number of
courts are requiring P to show that D’s conduct was improper.
Justifications for IIWC/ER (p79-82) for both: (1) truthful
information/honest advice (not opinion) within scope of request; (2) D
responsible for welfare of person and acting to protect welfare; (3) K is
illegal/against public policy; (4) person in good faith protecting bona
fide right (thief stealing car). Justifications only for IIEE or at-will K: 1)
Fair and ethical competition. [mother’s cookies] 2) Ethical action to
protect one’s own financial interest (stockholder). Catch-all: where
contract or EE violates public policy.
WRONGFUL TERMINATION: when P’s termination violates public
policy: P refuses to commit illegal activity, whistleblows, files
workman’s comp claims, etc. Public policy must (1) be defined in
constitution or statute (2) benefit whole society, not just P (use narrow
v. broad to define public’s interest), (3) be well established at time of
employee’s discharge. Split: Burden of proof. Maj: on D Min/CA: on P
TBOTCOGFAFD: occurs when CoGF is breached, depends on
particular terms of contract. Must be in bad faith. Generally limited to
insurance companies or unequal bargaining positions, where IC failed to
properly investigate P’s claim, or IC failed to pay a claim they knew was
valid. Tort damages in addition to economic loss (K): mental distress and
punitive damages too, if malice is proven. Split: Breach Maj: must be
knowing or purposeful. Min/CA: only purposeful. Montana: Bad faith
denial of K
DEFENSES TO INTENTIONAL TORTS
CONSENT: defense valid when victim gives permission. Can be
express or implied (can be implied by custom unless contrary
expressions by the individual). Consent invalidated by: Incapacity
(mentally ill, infancy, insanity, intoxication), D’s act beyond scope of
what victim consented to, fraud (medical context – consent negated if
professional standard requires more information to be disclosed to the
patient), non-economic (physical threat) or extreme duress, illegality.
Split: can consent to criminal act? Maj: no Min/R2T: yes, for purposes
of tort liability (except where the criminal law is specifically designed to
protect members of victim’s class).
SELF-DEFENSE: reasonable force can be used when D reasonably
believed necessity to protect oneself from immediate danger
(objective/subjective standard). No obligation to retreat from force that
does not threaten death or serious bodily injury. Split: Deadly force:
Maj: no need to retreat from aggressor to use deadly force (when D has
legal right to be present or proceed) Min/Rst/Mod Trnd: must retreat if
possible (except from dwelling unless the assailant also lives in the
dwelling) when otherwise deadly force would be required to defend
oneself.
DEFENSE OF OTHERS: valid when D reasonably believes 3rd party
is in immediate danger. Trad: 3rd party must have right to self-defense
(no mistake allowed if person being defended has no right to selfdefense) Min/Rst: can use reasonable force if actor correctly or
reasonably believes 3rd party has right to self-defense (reasonable
mistakes ok = good Samaritan).
DEFENSE OF PROPERTY: reasonable non-deadly force to prevent a
tort against D’s real or personal property but reasonable mistake will not
excuse force that is directed against innocent party. No privilege against
person who is in fact privileged to use property (no reasonable mistake).
D is liable against privileged V unless V led D to believe that V wasn’t
privileged. Rst: allows deadly force to prevent any breaking and
entering into dwelling. Mod Trnd: deadly force not justified unless
intruder threatens D’s safety by committing or intending to commit
dangerous felony on D’s property. Additionally, the homeowner cannot
eject a non-threatening trespasser or invited guest when doing so would
subject that person to serious physical harm. Mechanical infliction of
deadly force (trap gun) not justified. Can use barbed wire.
RECOVERY OF PROPERTY: may use reasonable force to recover
property when in hot pursuit of someone wrongfully taking property.
Reasonable mistakes, unless knowingly induced by the victim, negates
the privilege.
SHOPKEEPER’S PRIVILEGE: Can detain someone for reasonable
period based on reasonable belief of theft. Detention must be within or
near the immediate parameters of the store. Reasonable mistakes
allowed. Force intended to inflict death or serious bodily injury, even if
such force was necessary to recover property, is NEVER allowed.
ARREST: privileged if pursuant to valid warrant. Actor has right to use
reasonable force to arrest for if (1) person is guilty of felony, (2) felony
occurred, actor reasonably believes person did it (mistake allowed). Can
use reasonable force to arrest someone the actor witnesses committing a
misdemeanor if it breaches the peace. Police officers can arrest if
reasonably believes person is guilty of felony even if no felony occurred
Trad: could use deadly force to stop fleeing felon SCOTUS: felon must
be danger to society.
PRIVATE NECESSITY: privilege to interfere with another’s property
when necessary to avoid more serious injury to property/person. D must
compensate P for fair market value. P may not repel D’s trespass or
damage D’s property. Privilege applies when P’s property is objectively
less valuable than D’s (sentimental value doesn’t count)
PUBLIC NECESSITY: appropriation or injury of an innocent party’s
property to avoid more substantial public harm. No requirement to
compensate the innocent victim. (massive catastrophes apply but no
clear line/some courts refusing the immunity based on constitutional
violations of eminent domain)
NEGLIGENCE (D, SC, B, CiF, PC, D)
The following elements must be proven to establish liability: (1) Duty by
D to conform to (2) Standard of Conduct; (3) Breach of SoC by D, D’s
failure to meet SoC; (4) Cause-in-fact, D’s conduct is ‘but-for’ cause;
(5) Proximate/legal cause, no policy reasons to relieve D’s liability; and
(6) Damages suffered by P due to D’s breach
DUTY: obligates D to act (or refrain from acting) in a certain
(reasonable) manner towards P. Maj, Cardozo: Duty owed to victims in
foreseeable zone of danger Min, Andrews: Duty owed to the world
(those who are harmed by the action). Bring up both limited duty and RP
standard
LIMITATIONS ON DUTY: Exceptions to D’s failure to act: still gotta
do something!
Special Relationship Rst§314a: teacher/student, common carriers/
passenger, doctor/ patient, landowner/user, guardian/ward,
boss/employee, gen. relationship of dependence
Instrumentality under D’s control creates peril: where D created peril
and was negligent
Creating the Peril: duty to rescue when the need arises from D’s
negligence.
Voluntary undertaking: generally have no obligation to intervene.
Trad: Once a person starts to rescue, he must not leave victim in a worse
position. Mod Trnd: act reasonably once he has begun to act. Duty
imposed where D’s unfinished rescue efforts dissuade others from
helping, or D has prevented others from assisting. Virtually all
jurisdictions protect volunteers from liability through Good Samaritan
statutes (outside of employment doctors, nurses, prof. rescuers,
paramedics)
Contract: duty to rescue for people like lifeguards and baby-sitters.
DEBATE: contractual obligation to repair (landowner/tenant) clear trend
is to recognize a tort duty created by the contractual obligation when
personal injury occurs.
Duty to Control: duty to control arises under special relationships (1)
between the defendant and a third party, (2) combined with knowledge
(actual or constructive) of the need to control. D must be in a position to
exercise control over the third party for the protection of the plaintif.
Parent-child: limited duty, only when danger is foreseeable. Duty to
control child to prevent from intentionally harming others or creating
unreasonable risk of bodily harm if parent (1) knows/should know that
he has ability to control child, (2) knows/should know of
necessity/opportunity to exercise control [argue that child has done it
before]
Therapist-Patient: Tarasoff warning - duty to take reasonable steps to
protect 3rd party who therapist knows/should know (based on
professional standards) is in serious risk of physical harm from his
patient. Split: “readily identifiable” standard (specific) duty when patient
specifically identifies victim and therapist subjectively concludes patient
is dangerous. Applied not only to info from patient but from victim’s
immediate family as well. Does not apply to property. “Foreseeability
standard” (general – entire football stadium) duty to take reasonable
steps to warn all foreseeable victims.
Liquor Supplier: Typically no duty unless by statute.
Negligent Entrustment: D’s liability is premised on supplying a
potentially dangerous instrumentality (car/gun) to a person the D
knows/should know is not fit to handle it. Courts typically require closer
connection than just supplying alcohol to someone D knows is going to
drive and have limited NE cases to situations where the D has the right
to control the instrumentality causing the plaintiff’s harm.
Attorney Failure to Warn: Attorneys are less equipped to determine
the seriousness of the threat than a therapist so the duty to warn potential
victims depends on jurisdiction.
Duty to Protect: generally no duty to protect unless the D and P stand in
a special relationship where P has ceded the ability for self-protection
(jailor/prisoner or inn keeper/guest) or where P is responsible for D’s
protection (parent/child, school/student, hospital/patient, common
carrier/ passenger, employer/employee). Duty may also arise where the
D undertakes to protect P and P relies on that protection.
Landlord Duty to Protect: court may analogize to the innkeeper/guest
relationship. May also look at if the protection used to be greater than
when the injury occurred (establishes that D relied on the level of initial
protection)
Business Duty to Protect: courts require high degree of foreseeability to
establish a duty to protect P from injuries from a third party. Split:
“prior, similar incidents” (similar to Parent Duty to Children) / “totality
of the circumstances” (based on foreseeability) / middle approach (judge
balances the foreseeability of third-party criminal conduct against the
burden on the defendant of preventing the harm)
Police Duty to Protect: Typically no duty to protect individual citizens.
EXCEPTIONS: D police undertook to act and created reliance, enlisted
the aid of the plaintiff, or increased the harm to the plaintiff. (Some
courts finding duty based on equal protection violations (not responding
to domestic violence calls).
NIED Direct victims: can recover for mental distress parasitic to the
physical injury. Maj: Zone of Danger: P must be at risk of physical
impact (near miss counts) and suffer physical symptoms of mental
distress. Min: Impact Rule: just need small impact, not necessarily
physical; impact is broadly defined. Special Cases Min: allow recovery
even w/o impact, ZoD or physical symptoms if 1) mishandling of corpse
2) wrongful notice of close relative’s death. Min: allow chattel if it has
sentimental value and D should have foreseen such distress. Min:
broadest direct recovery for foreseeable Ps (no ZoD or IR)
NIED Third Party (3rdP): most states except CA require physical
manifestations from distress. Maj: 3rd P must be in ZoD and fear for their
own safety (incl. physical manifestations). Min: Dillon Test (3rdP not in
ZoD): 3rd P is (1) physically near accident; (2) suffers distress caused by
direct sensory perception of accident; (3) has close relationship with
victim. (MA: 3rdP can recover after seeing aftermath) CA: Thing Test:
same as Dillon, but P must be present. No phys. manifestation req.
Hawaii: P can recover if P is a foreseeable victim, but must be within
reasonable distance. Broadest recovery: Some say that anyone who has a
good relationship w/ P can recover, as long as they can prove economic
consequences (they wouldn’t have to be present). Exceptions:
mishandling of 3rdP’s relative’s corpse, wrongful death notice,
sentimental chattel
NIED Toxic Exposure: P suing for cost of covering medical monitoring
requires P to show physical manifestation of distress: Maj: required Min:
not required
Fear of Future Harm: (Firestone) Maj: no recovery for anxiety of
disease unless it has physical manifestations CA: (1) D neg. breached
duty causing exposure to toxic substance, (2) statistically probable that
>50% harm will occur, (3) P’s fear of harm or cancer is corroborated by
reliable medical opinion. No phys. manf. or malice required
Wrongful Death: allowed in all states by statute. Who can recover?
Most states: any close relative. Some states: siblings and stepchildren not
legally adopted barred recovery. Recoverable Damages: majority allow
for recovery of lost support and other benefits and for the plaintiff’s
grief, sorrow, and upset. Determining Damages: estimated time of life,
how much of the earning would have gone to P, character
(generosity/stinginess) of the deceased. Determining worth of child is
difficult for states allowing only pecuniary damages. Can take into
account education level of parents, career path of other family members.
May recover nothing based on costs of raising child that are no longer
required.
Survival Actions: survivor inherits decedent’s tort action, no new
claims. If tortious act leads to instant death, then no survival action.
Some jurisdictions bar recovery of decedent’s pain and suffering or
punitive damages. Most allow for recovery of decedent’s medical
expenses, lost wages and, perhaps, her pain and suffering.
Defenses to WD: contributory negligence jurisdictions – action is
barred. Comparative negligence jurisdictions – recovery reduced by the
percentage of fault.
Loss of Consortium: Maj: derivative action that either spouse (no kids,
cohabitants) can recover based on victim’s serious injury and intangible
damages Min: allow children/ parents to recover. Maj: recovery for
proven injury that disturbs the relationship – that the tortious harm to her
spouse has led to an impairment of what was a fulfilling and strong
relationship.
Wrongful Life: D’s negligence caused disabled P’s birth, child suing.
No injury but caused child to be born Maj: reject WL claim, no recovery
CA/NJ: Recovery limited to extra expenses (general damages,
educational equipment) caused by disability if not recovered by parents
in wrongful birth action, healthy children precluded.
Wrongful Conception: D’s negligence caused birth of P’s unwanted
healthy baby. Maj: Recovery limited to medical & other costs
(pain/suffering) caused by mother’s pregnancy, any corrective
procedure, mother’s lost wages, father’s loss of consortium, no recovery
for cost of raising healthy baby Min: full costs of raising a child on top
of maj. Recovery (court may look at motive – did the parents seek to
avoid pregnancy for financial reasons or just for heath or genetic defect
concerns?) Min: Benefit Doctrine: some states allow costs minus
enjoyment of another child.
Wrongful Birth: D’s negligence diagnosis caused birth of P’s unwanted
disabled baby. P must prove that but for D’s negligence in failing to
diagnose the condition giving rise to the birth defect, she would have
learned of the potential danger and terminated pregnancy Maj: recovery
for the extraordinary expenses associated with the birth defect. Min:
more expansive recovery (emotional distress), Benefit Doctrine reduce
damages b/c emotional benefits of having child (jury may deem these
benefits substantial or minor based on the condition of the child).
Land Occupier Duty: Split: Common law – measure of the duty owed
depends on the status of the person entering the land (trespasser,
licensee, invitee), Generalized duty of ordinary care, generalized duty of
reasonable care.
Trespasser: comes on land w/o permission or privilege. Trad: only duty
owed was to avoid willfully harming them (can’t shoot, put traps)
Mdrn/Rst: 1) Unknown trespasser: no duty except to refrain from
willfully injuring them (2) Frequent or known trespasser: Artificial
conditions: duty to disclose or make safe conditions that involve risk of
death or SBI. Natural condition: no duty.
Child Trespasser: Changes the common law obligation to avoid wilful
and wanton conduct toward the trespasser to an obligation of reasonable
care. Rst: LO owes duty if (1) child likely to trespass; (2) artificial
condition has unreasonable risk of death or SBI; (3) child can’t
understand danger; (4) LO’s burden of eliminating danger is slight
compared to risk to child, (5) LO fails to exercise reasonable care to
protect children. POINTS ABOUT THE RST: condition causing injury
no longer needs to lure the child onto the property, elevates standard for
child trespassers and licensees, does not apply when the child is old
enough to appreciate the risk, D must have clear evidence that a child
might come into contact with the harm-causing artificial condition (that a
RP would have known is not enough), doesn’t apply when the burden on
D is greater than the likely harm that would occur.
Licensee: enters land w/ permission, privilege: social guest, privileged
person, ppl coming for personal business (door-to-door salesman). No
obligation to make affirmative efforts to make property safe for licensee.
Only obligation is to warn of concealed artificial or natural dangers on
the property known to the land possessor. Danger may be natural or
artificial and it need not pose risks of serious injury or death. Land
owner may assume the licensee will be reasonably attentive to the
surroundings, and will notice readily apparent dangers.
Invitee: 1) business guest (customer in store) 2) public invitee. Land
conditions: RP std. Duty to warn invitee about potential dangers LO
knows/ should know of, reasonably inspect to discover hazards, make
land reasonably safe. Private residence  reasonably prudent
householder. Store, theater, office building  higher standard than
private residence.
Land Occupier Duty in Relation to Activities: RP standard for all
classes. Sliding Scale Approach: as the potential gravity of harm
increases, the amount of evidence needed regarding the presence of a
trespasser decreases.
Rejection of Classes (Rowland v. Christian): Min/CA: no distinction of
status, RP std. for all. LO liable regardless of status unless person is
committing felony. CA: trespassers cannot recover if engaged in felony,
unless LO inflicts willful act of harm
Duty to P Off Land: no duty to ppl off land for natural conditions. Duty
for artificial conditions (land cultivation makes artificial debatable).
Exception Maj: duty to inspect and cut trees in urban areas. Min/Oregon:
duty to rural and urban trees Min/CA: no limited duty, extends RP std. to
all natural (Malibu mudslides) and artificial conditions
Negligently Inflicted Econ Loss: Maj: No duty to refrain from
negligently causing pure economic loss. Liability for economic loss only
from injury to property or person Min: duty when risk to P was
particularly foreseeable (particularly foreseeable in terms of the type of
persons or entities comprising the class, the certainty or predictability of
their presence, the approximate numbers of those in the class, as well as
the type of economic expectations disrupted.
Negligent Information Suppliers: No duty in the economic loss context
unless the P and D have a special relationship (accountant). Split on how
expansive that duty is: Trad: “quasi-privity” – narrowest view, auditor’s
duty is owed only to those with whom he is in privity or those who are
known beneficiaries at the time of the auditor’s undertaking (must be the
end and aim of the transaction and not only incidental or collaterally
intended for investors like P). Rst: “middle approach (maj)” – liability is
extended to a known and intended class of beneficiaries (no longer
requires that the P be specifically identified to the D). “Foreseeability
approach” broadest rule – auditor’s duty is owed to those whom the
auditor should reasonably foresee as recipients from the company of the
financial statements for authorized business purposes (P must have
received the audit directly from the accountant’s client for a legitmate
business purpose, and the client must have intended the audit to
influence the plaintiff). No liability for negligently causing pure
economic loss).
STANDARD OF CONDUCT
Reasonable Person Std.: Objective standard, act as would a Reasonable
Prudent Person in the same or similar circumstances.
Hand Formula: D not liable when Burden<Probability of Harm x
Magnitude of Loss
Emergency Exception: D held to RPS acting under similar emergency
situations. Emergency exception doesn’t apply when D’s negligence
caused the emergency situation. (businesses are expected to anticipate
emergencies and take precautions).
Physical Disability: physical qualities may be considered when
determining D’s SoC (how would RP w/D’s disability behave). But,
person w/disability may be expected to take more care to avoid certain
activities (blind driving). Involuntary intoxication = physical ailment,
voluntary intoxication held to sober RP std. Exception: sudden,
unforeseen and unforeseeable physical ailments (i.e. heart attack, stroke,
and possibly mental breakdown) taken into account
Mental Disability: Maj: insane, low-intelligence, mentally handicapped
D still held to RPS of normal intelligence Wisc: sudden mental disability
w/o forewarning can negate liability. How would a reasonable jury rule,
considering subjctvty of a mental condition?
Child Standard: child compared to mirror image, RP of like age,
intelligence, experience under circumstances. Child std. supersedes,
applied over neg. per se doctrine Exception: kid doing adult activities
held to adult std Maj: activity that requires adult qualifications (driving,
hunting, scuba) Min: any activity that is inherently dangerous. Some
courts view hunting as child activity, and don’t apply adult standard to
the child
Role of Custom: must be well-established (practice widespread enough
that D knew or should have known of it). Does not by itself establish
duty (but evidence of deviation may suggest defendant failed to adhere
to a reasonable standard of conduct). Compliance with custom: usually
admissible as evidence of D’s lack of breach. However, does not
establish D’s due care; jury is free to find “customary negligence” if
entire custom itself is unreasonable.
Professional Standard (determined by custom): P must show that D
breached the SoC used by (1) members of D’s profession (2) in good
standing (3) in similar circumstances. Rst: professions and trades Trad:
only elite professions (medicine, law, architecture)
Medical Std., Duty to Perform: SoC set by custom, requires minimal
competence. D liable if D’s conduct proven below SoC. Custom: D not
liable if D’s approach is reputable or respected; D’s patients assume risk
for new treatments that have not yet become established customs. Expert
witness testimony helps P establish appropriate SoC and D’s breach of
duty. Testimony of what expert would’ve done is irrelevant. Expert need
not practice the same type of medicine as D but must be familiar with the
custom applicable to the defendant’s practice. Traditional locality
standard replace by Rst with “same or similar locality” test. Res Ipsa
Common Knowledge Exception: no need for expert witness if D’s
negligence obvious to layperson (i.e. cut off wrong limb)
Medical Std., Duty to Inform: Failure to disclose (fails to gain
informed consent) must be cause of harm. D is negligent when an
undisclosed complication arises, and P would have made different
decision about consenting to treatment had D disclosed all necessary
information. Maj/CA: Physician rule: Custom sets SoC, expert testimony
req. to establish custom. P must show that it is the custom of doctors in
good standing in the relevant medical community to disclose the risk that
D did not. Min: Patient rule: If duty is established, D must disclose to P
all material risks of treatment and alternatives and risks thereof. Jury
decides what is material (usually doesn’t require expert testimony). To
establish D’s duty, P must prove (1) nondisclosure of material fact by D
(2) had there been proper disclosure P would have rejected treatment
[proof of causation] (3) undisclosed adverse consequences did occur. If P
proves these elements, D may then try to prove that nondisclosure was
justified. Split: Establishing proof of causation – Subj. Test: would P in
this case have consented? or Obj. Test/CA: would a RP have consented
here? (compare to intentional misrep). Some courts hold that if the
patient declines treatment, doctor must disclose all risks of not doing the
procedure (P must still prove she would have undergone procedure had
she been informed of the risks of not doing so). Exceptions to disclosing
material risks: in emergency where patient is incapable of consenting,
patient requests not to be informed, doctor decides disclosure would be
mentally/physically harmful to patient, doctor does not know of the risks
Rule of Law: Judge decides SoC for RPP in frequently occurring
situations. Consistent but not individual. No flexibility for jury to decide
case on individual basis. Unpopular.
Proof of Negligence:
Negligence Per Se (Statutory Negligence): statute sets SoC, replaces D
& SoC, still need other elements Maj: Jury decides D violated statute,
and judge decides to use criminal statute in lieu of SoC Min: apply only
to criminal statutes. In tort action, statute used for jury merely to
consider whether D breached duty to SoC; SoC not replaced. Negligence
per se has two elements (1) P is in the class of persons protected by
statute; (2) D’s act caused P type of harm statute was designed to protect
against. Can’t be used in lieu of Child Std (unless adult activity).
Exceptions: when D has excuse for violating statute, complying
w/statute would be more dangerous, compliance is impossible, or if
violation was beyond D’s control (ex: avoiding accident by pulling into
opposite lane). However, compliance w/ statute doesn’t negate
negligence.
BREACH: D failed to meet standard of conduct
Res Ipsa Loquitur (covers breach and causation): P must prove (1)
accident normally wouldn’t occur w/o negligence [+50% chance] (2) D
has exclusive control of injury-causing instrument (Rst does not require
exclusive control as long as D is probably the responsible party) (3) P
did not contribute to D’s negligence. Once RIL applies, courts and jury
can infer D’s negligence, burden shifts to D to prove otherwise Maj: one
defendant Min/CA: don’t need exclusory control in medical case, can
have multiple Ds Extr Min/CA: even apply to nonmedical cases (hit &
run where unclear which of two Ds was driving). RIL useful when P
unable to make specific allegations about what D did, allows P to point
to D and demand that D proves D is not guilty of negligence (Ybarra)
CAUSE-IN-FACT:
‘But For’ Test: P must prove that more likely than not D’s conduct was
the ‘but for’ cause of P’s injuries: had D not acted negligently, P’s
injuries would not have resulted. D is not a ‘but-for’ cause if the
outcome would have been the same. Multiple BF causes: each person is
the BF cause. If you take one person out, the other won’t work.
Anderson Substantial Factor Test (when ‘but for’ doesn’t work): use
when multiple causes (each sufficient alone to cause harm)
simultaneously cause damage, and would preclude liability under the
“but for” test. D’s conduct was material cause of injury. Joint and
several liability: deep pocket pays if one D can’t. If one D did it, use RIL
Shifting the Burden: Multiple Ds who breached duty of care to P. Only
one caused injury, but P unsure which D. P shifts burden of proof to
multiple Ds to show they were not the actual cause. Any D who can’t
prove he’s not responsible is liable. If neither D can prove, then both are
liable. Deep pocket pays if one D can’t pay (Summers v. Tice)
Significant Deprivation of Chance (medical uncertainty): MD’s
negligence must be ‘but for’ cause of P’s injury. If P’s probability of
survival initially was 51% and then drops below 50%, P gets full
recovery; MD is BF cause and 100% liable. But, if P had 49% and drops
to 0%... Maj/CA: MD is not the BF cause, and P gets no recovery.
Min/Herskovits (relaxed BF): court allowed P to recover for wrongful
death against a physician whose malpractice reduced the patient’s chance
of survival from 39% to 25%, despite evidence that the patient would
have most likely died had the D not been negligent. The “reduction of
chance of survival” was sufficient to allow the jury to determine whether
the increased risk to the patient was a “substantial factor” in causing
death. If yes, then jury can give P full recovery, or a reduced amount.
Min/Mod Trnd (Loss of opportunity to survive): allow recovery for the
appropriate percentage of the wrongful death claim. If MD is negligent,
MD liable for the % reduction he caused when the initial chance of
survival was below 50%
Market Share Liability: Maj: no recovery b/c P can’t prove which D
was provider. CA, NY, FL, WI, MI: P can sue multiple manufacturers
and hold them all liable for P’s damages, provided Ds acted negligently
in producing and marketing dangerous drug. P must sue a substantial
share of the market. Burden of proof on Ds for each to prove they did not
provide drug. Each D unable to prove innocence must pay their market
share of damages Split, NY: D still liable even if D proved he was not
BF cause. Split: FL: uses local standard (market share % within that
locality) CA/NY: national %.
Toxic Torts: no recovery for enhanced risk (toxin exposure does not
invariably lead to disease; too hard to prove actual causation). P must
prove (1) exposure to that particular toxin (2) D is responsible for P’s
contact w/ the toxin, and (3) toxin in fact caused P’s injury. D only pays
for costs of P’s increased health monitoring (Ayers v. Township).
PROXIMATE/LEGAL CAUSE: How far does D’s liability extends
for consequences caused by his actions? Maj/Cardozo: D only liable to
P in foreseeable zone of danger. Even if D is BF cause, D is not liable if
the type of injury was unforeseeable. Manner and extent of harm need
not be foreseeable. P must prove D’s conduct is the proximate/legal
cause of injury. Superseding intervening force excuses D from liability,
must be extraordinary, unusual, and unforeseeable (criminal act by 3 rdP,
etc. considered superseding. Unlikely but foreseeable events usually not
superseding.) Min/Andrews: Proximate cause a question of public
policy, fairness and justice. Sometimes used when majority approach
would yield inappropriate result. D owes duty to those injured, even if
not foreseeable, and public at large b/c D’s negligence affects everyone.
Direct Causation Test: foreseeability of the consequences is irrelevant as
long as there were no superseding intervening forces. Eggshell Plaintiff
Exception to Maj: D still liable when P’s injury isn’t foreseeable; take P
as is. Damages may be adjusted to take into account P’s preexisting
condition, life expectancy and prospective health. D’s accident is BF
cause. Split: whether this should cover psychological injury.
DEFENSES TO NEGLIGENCE [must be duty and breach of duty]
Contributory Negligence: Extr Min/Trad: Because P is a BF cause for
his own injury, P's negligence complete bars P’s recovery for D’s
negligence. All or nothing rule. Complete defense, but not a defense to
intentional torts. Exception: Last clear chance doctrine: Ignore P's
contributory negligence if D's negligence occurred after P's contributory
negligence. “anticipatory mitigation approach” – plaintiff is liable for the
increased severity of damages attributable to her failure to wear a
seatbelt or stop a wound from bleeding, for example, but is not
contributory negligence. (contributory negligence is not a defense in
cases of negligence per se) Comparative Negligence: Maj/Mod Trnd:
liability in direct proportion to fault decided by jury (if P caused 30% of
injury, D pays 70% of damage). P allowed partial recovery until P hits
roughly 50% negligence, then P is completely barred from all recovery.
Modified Comparative Negligence: Maj: Partial defense for D if P's
fault is below 50%; complete defense for D if P's fault is above 50% (21
states) or 50% or above (12 states); (slight comparative negligence only
used in South Dakota and uses contributory negligence unless the P’s
own negligence is “slight”). Pure Comparative Negligence: Min/CA:
Always partial defense. Recovery is completely based on % at fault,
assess P’s responsibility v. D’s relative responsibility. P can be 99% at
fault and recover 1% of damages
Assumption of Risk: Typically involves dangerous activity. Only when
breach of duty exists. P (1) subjectively knows about a particular risk
caused by D; and (2) voluntarily (3) exposes himself to it, assuming the
risk. Voluntary is loosely interpreted. Defense applies to particular risk
P is assuming. If P surrenders judgment upon assurance of
safety/protection, P doesn’t assume risk. Express AoR: P explicitly
agrees to assume risk (written or verbal). Completely bars recovery.
Exceptions: Public policy violations: AoR signed under duress, extreme
recklessness on D’s part, grossly unequal bargaining power. No AoR for
MD malpractice. Express AoR is either complete defense or no defense
(when it violates PP). Implied AoR: AoR deduced from P’s conduct
Maj/CA: absorbed into comparative fault, partial defense. Limited duty
in active sports Min: Implied AoR is complete defense. AoR doesn’t
apply to intentional torts, just negligence
Immunities: charitable immunity – abolished by restatement and most
states, spousal immunity – mostly abolished, parent-child immunity –
some states have completely abolished this, others limit it by allowing
actions based on property, purely economic torts, intentional torts,
automobile accidents, or torts occurring during the operation of a
business (precludes allegations of negligent parenting).
DAMAGES: JOINT & SEVERAL LIABILITY: each liable for total
damages when Ds either (1) acted in concert (2) each caused a single
indivisible injury (3) vicarious liability, employer responsible for
employee’s acts, parents for their kids. Trad: each D paid evenly divided
pro-rated share Maj: each D’s pays dmgs based on his % liability to P
CA: If one can’t pay, others Ds cover him Settlement: Maj: if D settles,
deduct D’s %liability from dmgs Min/Prosser: if D settles, deduct D’s
actual payment from dmgs
STRICT LIABILITY, D, (No SC or B), CiF, PC, D. Based on type of
activity, not SC or B. Even if D meets SoC, D can still be liable w/o
fault if D is BF cause of accident. Elements of SL: Dangerous activity
must be under D’s exclusive control. P must prove D had a duty, and that
D’s activity was actual and proximate cause of the harm. This harm must
be type of harm that causes the activity to be R1d ultra hazardous: 1)
Involves a risk of serious harm to person, land, or chattel 2) harm
unavoidable even with exercise of utmost care, and 3) is not a matter of
common usage. R2d adds appropriateness of location and value of
activity, redefines scope of activity to abnormally dangerous: (1) high
degree of risk; (2) likelihood of great harm; (3) can’t eliminate risk
through reasonable care; (4) not common usage; (5) inappropriateness of
activity to place where carried on; (6) extent to which activity’s value to
community is outweighed by harm. Last two factors is a balance test of
value of activity and the danger it poses. Defenses to SL: Trad:
Contributory negligence: no defense, AoR: complete defense. Mod Trnd:
Comparative negligence and AoR: both partial defenses. SL discourages
very dangerous activities; unfair to expose society to risks of harm.
Possessing wild animals is abnormally dangerous, could lead to SL.
Limitation: no relief if activity was ‘natural use.’ Some hold D totally
liable when anything under D’s control escapes and causes damage.
Usually involves destruction of all evidence. Rectify the wrong and put
blame where it belongs.