I.
Intentional Torts
A. What is intent?
1. either a person's desire that certain consequences result from his actions, or
(even if he doesn't intend those results), his knowledge that those results are
substantially certain to occur as a result of his actions. (For each intentional tort,
pay close attention to what has to be intended; e.g., it may not be necessary to
intend to cause any “harm.”)
B. Transferred Intent
1. 2 types of transferred intent
a) transfer of intent between victims is recognized as supplying the
requirement for intent when an actor intends to commit a tort against one
victim but injures another instead. For example, if you intend to hit one
person with a baseball bat and miss that person but hit another in the
process, your intent will transfer from the intended victim to the actual
victim.
b) at least as far as the related torts of assault and battery, transfer of intent
between these torts is recognized by the courts. So if you intend to hit a
person with a baseball bat but miss, and instead only cause that person to
suffer the imminent apprehension of a harmful contact, you can be liable
for assault even though you intended a battery. Likewise, if you only
intend to cause the apprehension of contact, but harmful contact
accidentally ensues, your intent to cause an assault transfers to the tort of
battery.
c) You can combine both types of transfer of intent in one case. So if you
intend to assault one person but accidentally hit another in the process,
you can be liable for battery to the other person.
C. Intentional Tort Defenses: Consent
1. 3 Types of Consent
a) Express consent. (Example: P says to D, “You may come onto my
property.”)
b) Implied-in-fact consent. This occurs where P makes an objective
manifestation that D reasonably interprets as consent; it applies
regardless of P's subjective intent. Under this rule, even silence can
constitute consent where a reasonable person would speak if she
objected. Furthermore, custom and usage can supply consent. (For
instance, if P takes part in a contact sport, this constitutes implied
consent to any contact normally associated with that sport.)
c) Consent implied by law in emergency situations. Here, consent is
implied if: (a) P is unable to consent; (b) a reasonable person would
consent in the circumstances; and (c) there's no indication that P would
not consent if able to. (Example: P is unconscious after an accident and
there's no family member around to consent to surgery; P's consent will
be implied by law, so the surgeon can't be sued for battery.)
2. Consent to an intentional tort is in effective when…
a) The consent was obtained through duress (threat of imminent and
serious harm to plaintiff or plaintiff's family).
(1) duress in the form of threatened future economic deprivation or
future violence is not sufficiently immediate to invalidate
consent.
b) The consent was obtained through fraud (as to an essential matter only,
not a collateral, or unimportant, matter).
c) Plaintiff did not have the capacity to consent (infant, drunk, mentally
incompetent; for these, someone else, e.g., a guardian, has to consent for
P).
d) The act exceeded the scope of consent (e.g., consent to contact during a
contact sport ends does not extend to gross violations of game rules
designed to protect the players' safety).
e) In some jurisdictions, the consent was to a criminal act. Courts are split
at least three ways, with some saying consent to a criminal act is always
invalid, some saying it's invalid if and only if the crime involves a breach
of the peace (like a fistfight), and still others saying it's always valid. In
all jurisdictions, however, consent to a crime is invalid if plaintiff is a
member of a legislatively protected class. Thus, if plaintiff is an underage
female, her consent to have sex with defendant, an adult male, will never
bar her from suing for battery because she's a member of the class for
whose protection the prohibition on statutory rape is designed.
D. Self Defense, Defense of Others, & Defense of Property
1. Self Defense
a) Amount of force allowed—You can use only the amount and type of
force that reasonably appears necessary to protect yourself against the
threat.
b) Deadly force—You can use deadly force only if you reasonably believe
the other person is about to kill you or seriously injure you. “Deadly
force” is force intended or likely to cause death or serious bodily harm.
c) Effect of provocation—You aren't privileged to use self-defense to
respond to mere verbal threats. But watch out! If the words are
accompanied by a physical act threatening imminent physical
violence—e.g., a waved fist—you are entitled to self-defense.
d) Duty to retreat before you use force—The majority rule is that you
don't have to retreat under any circumstances. The minority (and Rest.
2d) rule agrees, if you're using only non-deadly force; but if you want to
use deadly force, the minority/Rest. 2d rule is that you have to try to
escape (retreat), unless you can't retreat safely, or you're in your own
home. Rest. 2d §65(3)(a).
e) Limits on self-defense—You can't use excessive force (if you do, you'll
be liable for battery yourself), and you can't use self-defense as
retaliation; that is, you can't use self-defense once the danger has passed
(e.g., your assailant is running away).
f) Effect of mistake—You're allowed to make reasonable mistakes; that is,
you may defend on grounds of self-defense even if you're mistaken about
the threat or the need to use force, as long as your mistake was
reasonable.
g) Effect of injuring others—When you use force in self-defense and
injure someone other than your attacker, you're liable to anyone you
intentionally injure (e.g., using someone as a human shield). For
unintentional injuries to third parties, you're liable only if you were
negligent.
2. Defense of others
a) You may use reasonable force to protect third parties who are threatened
with any kind of immediate harm, like rape or serious bodily injury. As
with self-defense, you're only entitled to use reasonable force; you'll be
liable for battery for any force that exceeds what the circumstances merit.
b) The modern rule, however, says that you're entitled to a reasonable
mistake, just as you would be for self-defense. (This minority rule is also
the Restatement approach, and it reflects an emerging trend toward
encouraging Good Samaritan interveners rather than punishing them.
Rest. 2d §76.
3. Defense of Property
a) The intrusion isn't privileged.
b) You reasonably believe force is necessary to prevent or terminate the
intrusion.
c) You demand that the intruder desist before you use force. (But you don't
have to make this demand if it appears that it would be dangerous or
futile.)
d) You use only as much force as appears to be reasonably necessary to
protect the property.
e) Helpful Hints
(1) Effect of mistake—You're entitled to a reasonable mistake as to
the necessity of using force. However, you're not entitled to a
reasonable mistake as to whether the intrusion is
privileged—that is, if the intrusion is privileged, you can't use
force against the intruder (even if you reasonably believe the
intrusion isn't privileged).
(2) Use of deadly force—You may never use deadly force just to
protect property. You may use deadly force only when the
property invasion is coupled with a reasonable fear of serious
bodily harm (e.g., the intruder is brandishing a weapon).
(3) Effect of privileged intrusion—If the plaintiff enters your
property under a privilege of her own (e.g., a necessity; for
instance, the plaintiff docks her boat at your dock during a
tornado), you aren't entitled to use force to expel her.
(4) Exposing intruder to a greater danger—You may not expel
even an unprivileged intruder so as to put him in a position of
unreasonable physical danger.
E. Intentional Tort Defences: Necessity
1. Public Necessity vs Private Necessity
a) Public necessity involves actions taken to avert a public disaster (e.g., a
fire). Private necessity involves action taken to protect any person from
death or serious harm, or to protect specific land or chattels from injury.
2. Private Necessity → Limited Privelage
a) if you take refuge in the plaintiff's barn in a snowstorm and burn some
planks to stay warm, you're liable for the value of the planks and any
damage your fire causes. For another thing, the harm you prevented by
your conduct must outweigh the harm you caused
F. Assault
1. Elements of Assault
a) A person is liable for the tort of assault upon another if “(a) he acts
intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact,
and (b) the other is thereby put in such imminent apprehension.” Rest. 2d
§21(1). So P must prove the following elements:
(1) ACT: That D committed a voluntary act.
(2) INTENT: That D intended to cause P to suffer the apprehension
of a harmful or offensive contact.
(3) REASONABLE APPREHENSION: That D's act created in P a
reasonable apprehension of imminent harmful or offensive
contact with P's person. (P need not feel “fear,” merely the belief
that a harmful or offensive contact will occur.)
G. Battery
1. Elements of battery
a) ACT: That D committed a voluntary act.
b) INTENT: That D intended to cause a harmful or offensive contact with
P's body.
c) CONTACT: That D's act caused a contact to occur that was either (a)
harmful or (b) offensive to a person's reasonable sense of personal
dignity.
H. False Imprisonment
1. False Imprisonment
a) D falsely imprisons P if D “(a) acts intending to confine [P] or a third
person within boundaries fixed by [D], and (b) his act directly or
indirectly results in such a confinement of [P], and (c) [P] is conscious of
I.
the confinement or is harmed by it.” Rest. 2d §35(1). So P must show the
following:
(1) CONFINEMENT: That D committed a voluntary act of
confining or detaining P to a bounded area (via physical restraint
or threats of force).
(2) INTENT: That D intended to confine or restrain P within a
bounded area (negligence is not sufficient).
(3) AWARENESS OR HARM: That P was either aware of the
confinement at the time or was actually harmed by it.
2. Defenses to FI
a) Consent: P's consent to remain in a place negates the wrongfulness of
the detention.
b) Legal justification: If D is authorized by law to detain or confine P,
there will be no false imprisonment, as in cases of the appropriate arrest
of a murder suspect or the actual confinement in prison by a jailer of a
person under indictment for a crime or serving a criminal sentence. But
once the justification is removed, a false imprisonment occurs if the
confinement continues. So when a prisoner has served his sentence but
remains incarcerated, the jailer may be sued for false imprisonment, even
if the jailer is unaware that the legal justification is no longer available.
c) Shopkeeper's privilege: A defense that is actually a form of legal
justification is the shopkeeper's privilege. This privilege, recognized in
most states either by statute or court decision, generally grants store
owners the right to detain someone for a reasonable period of time based
upon a reasonable suspicion that the person has shoplifted, in order to
investigate the matter.
Intentional Infliction of Emotional Distress
1. What is IIED?
a) —sometimes called the tort of“outrage”—is the intentional or reckless
infliction, by extreme and outrageous conduct, of severe emotional or
mental distress, even in the absence of physical harm. Rest. 2d §46. So
plaintiff must show the following:
(1) ACT: that defendant committed an act constituting extreme and
outrageous conduct (petty insults or annoyances won't suffice).
(2) INTENT: that defendant intended to cause, or recklessly caused,
plaintiff to suffer severe emotional distress.
(3) CAUSATION: that defendant's conduct in fact caused plaintiff
to suffer severe emotional distress.
2. When is the required level of outrage lowered
a) When the defendant knows that the victim is a member of a group with
heightened sensitivities (e.g., children, the mentally infirm, pregnant
women, or the elderly);
b) When the defendant knows of the victim's special sensitivities, even if
those sensitivities wouldn't otherwise be obvious; or
c) When the defendant is a public utility (e.g., innkeeper or common
carrier), and the victim is a customer. In such cases, the defendant will be
liable for gross insults or indecent language that wouldn't otherwise be
outrageous enough to give rise to an emotional distress claim.
II.
Negligence
A. Duty and Breach- The reasonable person standard
1. Does a person’s mental capacity change standard?
a) No. So even if an adult is mentally incompetent, or just stupider than
average, her mental deficiency will not typically relieve her of the duty to
behave with the degree of care that would be exhibited by an adult of
normal intelligence.
b) COMPARE: Physical characteristics (e.g., blindness, deafness) are
considered in determining the standard of care—that is, a deaf person is
held to the standard of care for a reasonable deaf person in similar
circumstances.
c) COMPARE: Intelligence is taken into account in determining reasonable
conduct for children. That's because a child's behavior is measured
against children of like age, experience, and intelligence (unless the child
is engaged in an activity that is either categorized as one for adults only
or one that is inherently dangerous, such as driving a motorized vehicle).
2. Custom
a) Custom in a community or industry is relevant evidence of what the
standard of care is—but it's not conclusive because the whole community
or industry may be negligent. Remember, a person's duty of care is
characterized as what the reasonable person would do in similar
circumstances, so as to avoid unreasonable risk to others. Custom is
useful in determining exactly what it is that a reasonable person in
similar circumstances would do. This treatment applies equally whether
the custom evidence is used by the plaintiff (i.e., evidence of D's
noncompliance with custom, to show breach) or by the defendant (i.e.,
evidence of D's compliance with custom, to show a lack of breach).
b) EXAMPLE: Let's say the custom in the cruise industry is to have
lifeboats sufficient for only half of the ship's passengers (that's what the
Titanic had, by the way). This custom would be admissible evidence of
the number of lifeboats reasonably required. But the jury would be free
to conclude (and, indeed, would likely conclude) that this 1-to-2 ratio
was unreasonably dangerous.
B. Negligence per se
1. Doctrine of neg. Per se
a) That the statute provides for a criminal penalty (or some administrative
enforcement mechanism) for the kind of conduct that occurred here.
b) That the statute was formulated for the purpose of preventing the kind of
harm suffered by him.
c) member of the class that the legislature intended to protect with the
statute.
2. When will compliance be excused?
a) D didn't know or have reason to know of the factual circumstances that
made the statute applicable
b) D reasonably attempted to comply
c) D faced an emergency not of his own making
d) Compliance with the statute would have been more dangerous than
violating it.
e) D's violation is due to the confusing way the requirements of the statute
are presented to the public.
III.
Causation
A. Actual Cause; the But for cause test
1. “BUT FOR”: D's conduct is considered a cause-in-fact of an event if the
event would not have occurred “but for” D's conduct. This can happen
whether D's conduct is the sole cause or one of several concurrent causes
(each of which was necessary to the event). This is the standard test for
determining whether D's conduct is the cause-in-fact of an event.
2. NOTE: P need only prove but-for causation by a preponderance of the
evidence (i.e., that the injury probably would not have occurred if D had not
been negligent).
B. Joint and Several Liability
1. What is joint and several liability?
a) The doctrine applies where there's more than one tortfeasor and the
damages they each cause are indivisible. When the doctrine applies,
it makes the tortfeasors all jointly liable for any resulting judgment
against them. Furthermore, each of them is also individually liable for
the whole judgment (in case the plaintiff sues any one of them
instead of all of them).
b) There are three principal situations where you commonly see it:
(1) The tortfeasors act in concert (e.g., one tortfeasor grabs the
plaintiff and the other steals his wallet);
(2) The tortfeasors fail to perform a common duty to the plaintiff
(e.g., both a building management company and an elevator
maintenance company neglect to maintain an elevator, and it
falls, injuring plaintiff); and
(3) Most important, the negligence of several tortfeasors acting
independently combines to produce an indivisible injury to the
plaintiff (e.g., the drivers of two cars negligently hit a
pedestrian). Rest. 3d (Apport.) §A18.
2. How is several liability different from joint and several liability?
a) With joint and several liability, each tortfeasor can be required to pay
for the plaintiff's entire damages. With several liability, by contrast, a
tortfeasor is only liable for its proportionate share of the fault or
responsibility. If either of the defendants is insolvent, the plaintiff will
recover less than all of her damages under this system. As part of the
tort reform movement over the last two or so decades, many states
have moved away from joint and several liability and toward a system
of several liability.
(a) insolvent→ unable to pay debts
b) Unlike joint and several liability, there are no contribution rights
needed or recognized in a several liability jurisdiction because each
defendant is only paying its own proportionate share of the damages.
c) Some states provide for several liability in some cases and joint and
several liability in other circumstances. For example, in some states a
defendant is only severally liable unless she is found to be more than
50% responsible for the harm to the plaintiff (a system referred to as
“threshold joint and several liability” statute).
C. Alternative Liability, Market Share Liability, and Multiple Sufficient Causes
1. Alternative Liabiltiy
a) When the plaintiff sues all of multiple actors and proves that each
engaged in tortious conduct that exposed the plaintiff to a risk of
physical harm and that the tortious conduct of one or more of them
caused the plaintiff’s harm but the plaintiff cannot reasonably be
expected to prove which actor caused the harm, the burden of proof .
. . on factual causation is shifted to the defendants.
2. Market Share Liability
a) All the named defendants are potential tortfeasors;
b) The alleged products of all the tortfeasors share the same properties
and are identical;
c) The plaintiff, through no fault of her own, cannot identify which
defendant caused the injury; and
d) The plaintiff brings in as defendants those representing a substantial
share of the market
(1) If the plaintiff can meet all four requirements, each defendant
is liable for damages representing only its share of the market
at the relevant time.
3. Multiple Sufficient Causes
a) (albeit rare) problem of “independent concurrent causation” (the term
should make more sense now), the courts created a special rule:
When there are two independent causes, either one of which would
have been enough to cause the same indivisible injury to the plaintiff,
both defendants are liable for the damage.
D. Proximate Cause
1. the proximate-cause issue as a matter of foreseeability: “An actor's liability is
limited to those physical harms that result from the risks that made the actor's
conduct tortious.” Rest. 3d §29.
2. Scope of risk example
a)
modern idea of scope-of-risk: there are several risks that make it
negligent to block a sidewalk or walkway (e.g., the risk that a
pedestrian will be forced into the street and struck by a vehicle). But
one risk that is not part of why walkway-blocking is negligent is the
risk that lightning is more likely to strike someone forced into the
street than one walking on the walkway. So the accident here was not
within the scope of the risk that made defendant's walkway-blocking
negligent, and this fact prevents that negligence from being the
proximate cause of the accident.
E. Intervening and Superseding Cause
1. What is an intervening cause?
a) An intervening cause is a cause that
1. Comes into active operation;
2. In producing the result;
3. After defendant's negligent act;
4. From a source independent of defendant's negligence.
2. Individuals are responsible for foreseeable intervening causes of
damage. Under this rule, what must be foreseeable, the intervening act itself or the result?
(1) The key focus is on the intervening act rather than on the
ultimate result. That is, if the act was reasonably foreseeable,
proximate cause is not negated by the fact that the ultimate
result was a very unlikely or bizarre consequence of the
intervening act
(2) Although the cases turn on the particular factual
circumstances, here are some intervening actions that are
relatively likely to be found unforeseeable (and therefore
superseding) causes:
1. Malicious, intentional tortious intervening acts, where
there was no reason to expect such an act.
2. Extraordinarily negligent intervening conduct.
3. Acts of God (e.g., floods, tornadoes, etc.), where the
resulting harm is of a completely different kind from
that which made D's conduct negligent. (Example: D
delays transporting P's goods, and a hurricane then
destroys them in a place where they wouldn't have
been had D not delayed. The hurricane is
superseding.) Rest. 2d §451.
2. What is a superseding cause?
a) “Superseding” is a conclusory label imposed by the court where the
court decides that the intervening act was so unlikely or bizarre that it
should be deemed to break the “chain of causation” from the
defendant's act to the plaintiff's injury, thus negating the defendant's
liability. A cause or event would most likely be deemed superseding if
the court concludes that it was not “within the risk” that made the
defendant's conduct negligent.
(1) This is obviously a judgment call, and in any given set of
circumstances you're likely to be able to argue both ways.
You need to know (1) how to structure the
superseding/non-superseding argument and (2) what the
consequences are of concluding that a cause is or is not
superseding.
b) Forseeability
(1) Foreseeability. If an intervening force is relatively
unforeseeable, it will normally be viewed as superseding.
Although this is a question of fact, the following are common
instances where, only if the intervention was relatively
unforeseeable, will liability be lifted: criminal acts or
intentional torts of third parties, extraordinarily negligent
conduct (obviously a matter of interpretation), and “acts of
God.”
F. Negligent Infliction of Emotional Distress
1. Traditionally, you could not recover for damages in the absence of any
“impact.” Courts, fearing the expansion of liability for emotional losses, would
say that I had no duty to you in relation to emotional injuries or would use
another policy doctrine
2. Emotional distress particularly foreseeable, but some competing policy
concerns. As some courts have moved from the traditional to the modern
approach to NIED, they have also recognized a small class of cases in which
there is no danger of physical impact, but emotional distress is particularly
foreseeable from negligence and on policy grounds justifiably recoverable.
Consider, for example, a funeral home that mishandles human remains. In
such cases, the conduct is highly likely to result in emotional distress to the
surviving family members, and concerns about false or exaggerated claims
are not as worrisome
3. (‘‘An actor whose negligent conduct causes serious emotional harm to
another is subject to liability to the other if the conduct: . . . (b) occurs in the
course of specified categories of activities, undertakings, or relationships in
which negligent conduct is especially likely to cause serious emotional
harm.’’).
4. 3 Part duty test established by Dillon v. Legg
a) Whether plaintiff was located near the scene of the accident as
contrasted with one who was a distance away from it.
b) Whether the shock resulted from a direct emotional impact upon
plaintiff from the sensory and contemporaneous observance of the
accident, as contrasted with learning of the accident from others after
its occurrence.
c) Whether plaintiff and the victim were closely related, as contrasted
with an absence of any relationship or the presence of only a distant
relationship.
IV.
Affirmative Duties
A. Special Duties: Entrants on Land
1. Licensee
a) A licensee is one who enters another's land with express or implied
permission, but without a business purpose, and without the implied
promise that the landowner has made the premises safe for her.
(1) Examples: social guest. (Don't get tricked: social guests are
“invited” but are licensees, not invitees.) Other licensees include
emergency personnel (firefighters and police officers, under the
Official Guest doctrine), uninvited salespeople, and those
entering business premises for reasons other than business (e.g.,
to escape the rain).
(2) Duty owed to licensee
(a) Warn licensee of known dangerous artificial conditions
creating an unreasonable risk of harm to licensee, where
the licensee does not know about the condition and is not
likely to discover it.
(b) Avoid any acts of gross negligence with regard to any
activities the owner has undertaken on the premises.
(i)
Owner is not under a duty to licensees to repair
even known defects (so long as a reasonable
warning is provided) or to inspect for unknown
defects.
2. Invitee
a) An invitee is one who either (a) enters land by express or implied
invitation to conduct business with the owner or (b) enters for a purpose
for which the land is held open to the public.
b) Such persons are said to reasonably expect that the landowner has made
the premises safe for them.
(1) Examples
(a) Store customers and patrons of establishments held open
to the public (museums, airports, etc.); also,
non-emergency public servants, like postal and
sanitation workers.
c) Duty owed to invitees
(1) The landowner must make the property reasonably safe for the
invitee. This includes the duty to warn of known dangers.
Furthermore, the landowner has a duty to inspect for dangerous
conditions and then repair the condition. A landowner further
owes a duty to its invitees to act with reasonable care regarding
any activities the landowner undertakes on its premises.
3. Attractive Nuissance Doctrine
a)
doctrine applies special duties with respect to child trespassers. The
landowner must:
(1) Exercise ordinary care;
(2) To avoid harm to children (young enough not to appreciate
risk—probably not over 12);
(3) Where the harm is due to a reasonably foreseeable risk;
(4) Caused by a dangerous artificial condition on the land;
(5) In an area where children are likely to trespass.
(6) Also, the risk of injury must outweigh the cost of remedying the
dangerous condition.
(i)
if the child knows of the danger, understands it,
and can avoid it, then the landowner owes him
only the same duty as he would owe to an adult
trespasser.
4. Ways Landowner can be liable to outsiders
a) Activities: A landowner can be liable for negligently engaging in
activities on his own land that pose an unreasonable risk of harm to
outsiders or to other property.
b) Natural conditions: The landowner has no duty regarding natural
conditions, except in two situations: (1) there is a duty if the possessor or
anyone else has ever altered the natural condition so as to aggravate the
risk; and (2) in urban areas, a landowner with trees near public streets
has a duty not to let the trees pose an unreasonable risk of harm to those
on the street (e.g., letting rotted limbs hang over a sidewalk).
c) Artificial conditions: There is a duty to maintain buildings, fences, and
the like that abut other land or streets, so as not to pose an unreasonable
risk of harm to those outside the land.
V.
B. Duty and Special Relationships
1. General Duty to rescue?
a) No; as a general rule, the law imposes no such duty.
b) However, courts have carved out various exceptions to this rule, which
require that D take affirmative (and careful) steps to aid P in certain
circumstances. These include situations in which:
1. D's act created the peril;
2. A special relationship mandates affirmative assistance
(e.g., parent-child, common carrier-patron, contractual
relation, etc.); and
3. D has undertaken to act for P's benefit (i.e., D has
promised or begun giving assistance, especially where
this dissuaded others from helping P).
Strict Liability
A. Trespass to Land, Trespass to Chattels, Conversion
1. Elements of Trespass to Land
a) ACT: That D committed a voluntary act;
b) PHYSICAL INVASION: That D physically invaded P's exclusive
possessory interest in real property without P's consent;
c) INTENT: That D intended to come in contact with the land in question.
(This element is judged without reference to whether D knew the land
wasn't his own or intended to deprive P of any right.)
2. Elements of Trespass to Chattels
a) Trespass to chattels consists of intentionally interfering with personal
property in someone else's possession. So P must show that:
(1) ACT: D committed a voluntary act.
(2) INTENT: D intended to act upon or come into contact with the
personal property of another.
(3) INTERFERENCE: D interfered with P's right of possession in
the chattel. (The act can be either a dispossession [essentially,
taking physical possession of the chattel to the exclusion of the
owner] or an intermeddling [often a brief touching or harming it
without any disruption in possession].)
(4) POSSESSION: P either possessed the chattel or had the
immediate right to possess it (not some future right).
3. Difference between T2C and Conversion
a) The primary consequence of the distinction relates to remedy. The
presumptive damage recovery for a conversion is the fair market value of
the property at the time and place of conversion. This is often referred to
as a forced sale, meaning that P gets the value of the property and D gets
to keep it (unless D destroyed it). With trespass to chattels, by
consequence, D typically has to pay just for the damages actually caused
(or nominal damages), not the entire value of the item. This consequence
makes sense, given the definition of a conversion—conversion occurs
when D's intentional interference with P's personal property is so
substantial as to make it fair to require D to pay the full value of the item.
B. Traditional SL
1. Owners of animals
a) Only if the animal is a wild animal (e.g., lion, tiger, monkey, skunk). For
wild animals, owners are strictly liable for any harm resulting from the
type of trait that makes that breed of animal dangerous.
b) In the case of domesticated animals (e.g., cats and dogs), in most states,
the owner is strictly liable only once he knows or has reason to know of
the animal's dangerous propensities that are uncharacteristic of the
species. Example: Once your dog has bitten someone or tried to, you
know it's a biting kind of dog and you'll be strictly liable for any further
attacks. (This concept is sometimes loosely summarized as “Every dog
gets one bite free.”)
C. Modern Strict Liability
1. What elements determine whether an activity is abnormally dangerous?
a) Does the activity involve a high risk of serious harm to people/property?
b) Is there no way to perform the activity with complete safety regardless of
how much care is taken?
c) Is the activity not commonly engaged in in the particular community?
(Example: blasting in a desolate area, no strict liability; blasting in an
urban area, liability.)
d) Does the activity's danger outweigh its utility to the community (a
balancing test)?
* the more questions answered yes, higher likeliness of a.d
-COMMON STRICT LIABILITY ACTIVITIES: Fumigation, using
explosives, blasting, excavating, mining.
2. Assumption of the risk is a valid defense to strict liability both under the common
law and under modern comparative negligence regimes.
3. RST 2ND→ One carrying on an abnormally dangerous activity is subject to strict
liability for the resulting harm although it is caused by the unexpectable (a)
innocent, negligent or reckless conduct of a third person, or . . . (c) operation of a
force of nature.”
a) However, many courts would not follow the Restatement approach here.
In many courts, the defendant in a strict liability suit is likely to be
relieved of liability if an unforeseeable event results in damage, even if
the damage is of the type the risk of which made the activity abnormally
dangerous.
D. Vicarious Liability
1. General rules to follow
a) Not limited to negligence: If any intentional tort occurs within the scope
of employment, the employer will be liable (e.g., assault, battery, false
imprisonment, emotional distress).
(1) Scope of employment
(a)
the act's purpose to some extent is to serve the
employer's objectives
(b) the act is of a general type that the employee is
authorized to perform, and
(c) the act occurs substantially within the time and place
authorized by the employer.
b) Instructions don't insulate the principal: The principal can't insulate
herself with careful instructions that the employee violates. Otherwise,
every employer would simply instruct its employees, “Don't commit any
torts,” and would thereby immunize itself from any vicarious liability.
c) A business partner is vicariously liable for torts committed by the other
partner within the scope of the partnership.
d) Joint venturers are vicariously liable for torts committed within the
scope of the venture. (A joint venture requires an agreement, a common
purpose, a common pecuniary interest, and a mutual right of control.)
e) A car owner is generally not liable for torts committed while others
drive his car (although some states have changed this by statute, making
car owners liable for torts committed by family members using the car
with the owner's permission [this is the family car doctrine], or anyone
using it with permission [the permissive use doctrine]).
f) Parents are not vicariously liable for their children's torts (but they
may be directly liable, e.g., for giving the child a dangerous object that
the child lacks the maturity and judgment to control). Liable when
parents themselves behaving negligently
2. VL for independent contractors?
a) No. However, exceptions to this general “no vicarious liability for torts
of independent contractors” rule include situations where:
1. The work involves a “peculiar risk” of injury unless special precautions are taken (e.g.,
high-voltage electrical work);
2. The work is “ultra-hazardous,” so that the owner would be strictly liable if he did the work
himself (e.g., blasting);
3. The work involves land held open to the public, so that the owner would owe a duty of care to the
public if he himself did the work (e.g., a retail store);
4. The work is done in a public place (e.g., a sidewalk or road).
E. Nuisance
1. What is a private nuisance?
a) It is conduct by defendant that creates an unreasonable, substantial
interference with plaintiff's use or enjoyment of property. It is considered
personal to the plaintiff. Note that the act need not be intentional, or even
negligent, to constitute a nuisance!
(1) Damages recoverable: P may recover for all harm resulting
proximately from the nuisance, both personal injury (including
diseases caught from inhaling fumes, for instance) and property
damage.
(2) Interest protected: P's right to use and enjoy her land.
(3) Protects occupants, not just owners: Plaintiff need not own the
property affected, but she must be an occupant of it (e.g., a
tenant).
2. What is the difference between P.N and Trespass?
a) Physical invasion. Because trespass requires interference with a
landholder's exclusive possession, there must be a physical invasion. On
the other hand, private nuisance is interference with plaintiff's use and
enjoyment of his land, and that does not require a physical invasion.
Thus, strong lights, excessive noise, or foul odors can constitute private
nuisance, even though they do not constitute trespass.
3. Balancing test for private nuisance
a) The burden on the plaintiff's enjoyment and use of his land is balanced
against the utility and necessity of the defendant's use Rest. 2d §826-28.
4. What is the appropriate remedy for a private nuisance claim?
a) If the nuisance is temporary, as is usually the case, P is entitled to past
and present damages and, perhaps, an injunction (if it's a continuing
nuisance, and if the harm to P outweighs the utility of D's conduct). But
P will not be entitled to the present value of estimated future damages,
since the presumption is that the nuisance will cease. The nuisance is
temporary if it exists only during active operation of something (e.g., a
factory).
b) If the nuisance appears to be permanent, P may (and indeed must)
recover all damages, past and future, in one action. If damages would not
be a sufficient remedy, P may be entitled to an injunction. A permanent
nuisance is passive and created by something durable and artificial
whose effect will continue indefinitely. So its very existence creates all
the damage it will ever create. (Example: A dam backs water onto P's
land.) Permanent nuisances are very rare.