Torts Review PDF

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Torts – REVIEW 1. Intent 2. Recklessness- indifference to a known and substantial risk of harm created by one’s behavior. 3. Negligence - failure to use reasonable care, with harm to another party occurring as a result 4. Strict liability- liability irrespective of fault civil case is normally a suit between private parties. In criminal cases, a prosecutor represents the government in confronting the defendant. The standard of proof that the plaintiff must satisfy in a tort case is the preponderance of the evidence standard, not the more stringent beyonda-reasonable-doubt standard applied in criminal cases.

A plaintiff who wins a tort case usually recovers compensatory damages for the harm she suffered as a result of the defendant’s wrongful act. If the defendant’s behavior was particularly bad, injured victims may also be able to recover punitive damages. Punitive damages are not intended to compensate tort victims for their losses. Instead, they are designed to punish flagrant wrongdoers and to deter them, as well as others, from engaging in similar conduct in the future. Punitive damages are reserved for the worst kinds of wrongdoing and thus are not routinely assessed against the losing defendant in a tort case.

Intentional Torts 

Intent – desire to cause or substantial certainty

Battery         

Intentional & harmful OR offensive touching Actual injury doesn’t have to be physical Without consent EITHER intent to cause contact OR cause apprehension such contact is imminent Transferred intent –D who intends to injure one person, injures another Need not be direct contact between D and P body –trap, poison, shoot hat P doesn’t need be aware of battery at time it occurs Freely and intelligently given CONSENT as a defense IMPLIED CONSENT doctrine customary/reasonably necessary touching

Banks v. Lockhart In a bar, Gibson slaps Banks for unknown reason, Lockhart and Gibson leave and are going through an alley when someone hurts Gibson then when Lockhart goes to help he gets punched in the face. He saw Banks running away and sued

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him for battery b/c he intended to harm Lockhart and did w/o consent of touching. Lockhart won and received both compensatory and punitive damages

Assault       

Intentional attempt or offer to cause harmful or offensive contact with another person if causes reasonable apprehension of imminent battery in other person’s mind. Need awareness, don’t need contact. EITHER intent to cause contact OR cause apprehension contact imminent Irrelevant if threatened contact actually occurs Reasonableness requirement Fear not necessary, I’m about to be hit Imminent/immediate battery; not threats of future battery Threatening words normally are not an assault unless they are accompanied by acts or circumstances indicating the defendant’s intent to carry out the threat.

Intentional Infliction of Emotional Distress       

Separate tort, not emotional damages from another recognized tort Intentional or reckless, extreme & outrageous, severe emotional distress severe emotional distress Many instance of bad behavior won’t be classified as “bad enough” Falsely telling a parent that child has been horribly injured, extreme When D plays upon emotional susceptibility with knowledge of its existence and when D abuses position of authority Third party: at minimum, should be able to recover from witnessing outrageous behavior toward member of immediate family

Durham v. McDonald’s Restaurants of Oklahoma, Inc. McDonald's manager verbally harassed employee with retarded etc Claimed intentional infliction of emotional distress, scared to start new job, depressed...jury must decide if boss's behavior was outrageous. the trial court granted summary judgment in favor of McDonald's. Durham appealed to the Oklahoma Court of Civil Appeals, which affirmed. Durham appealed to the Supreme Court of Oklahoma. Grant of summary judgment in favor of McDonald's reversed; case remanded for further proceedings.

False Imprisonment   

Intentional confinement of another person for appreciable time (few minutes enough) without consent Physical barriers, threat of physical force, unfounded assertion of legal authority to detain, detention of personal property, threat to harm another Confinement required for liability must be complete

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Must know of means of escape (not if escape route involves unreasonable risk of harm or affront to dignity) Traditionally must have knowledge of confinement Consent freely given not implied/actual threat force/false legal authority CONDITIONAL PRIVILEGE STATUTES – must act with reasonable cause, reasonable manner, detain for no longer than reasonable length

Farrell v. Macy’s Retail Holdings, Inc. Court found that because Macy's employees had probably cause to detain the Farrells, the shopkeeper statute protects Macy's against liability for false imprisonment.

Defamation • Two competing interests • P’s interest in protection of reputation; • D’s interest in freedom of speech • ELEMENTS • Unprivileged • Publication of • False and defamatory • Statements concerning another • Slander = oral • Libel = written, printed, physical form

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Unprivileged publication of false & defamatory (likely to harm reputation or deter others from dealing with him) statements concerning another Only require publication to third party one other person; not usually selfpublication Remember defamation is intentional tort – intentional/reckless publication Presumed damages available for reputation/emotional distress in libel Slander generally not special damages unless specifically proven unless Slander per se: false statements that P has committed a crime involving moral turpitude; has a loathsome disease; is professionally incompetent or guilty of professional misconduct; is guilty of serious sexual misconduct Fiction – yes if reader would identify P as subject of story – disclaimers Humor – no, unless R reader would believe real events/actual facts Pure opinion – no; mixed – only if can be proven true or false; Context

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Group – no unless so small as refer to individuals; dead – no; corp – depends – can defame corp but statements about EEs, shareholders, officers not defame corp unless reflect on manner corp does business Repeating false/defamatory can also be liable even if not from original source Publisher & source both be liable unless mere distributor library/bookstore TRUTH is complete defense Absolute privileges complete defense (participants in judicial proceedings, legislators/witnesses in course of leg proceedings, certain exec officials (president) in course of duties, one spouse to another in private Conditional (qualified) privileges give a defense unless privilege abused – abuse generally when statement made with known falsity or reckless disregard for the truth, when statement does not advance purpose supporting privilege, or when unnecessarily made to inappropriate people

Neumann v. Liles -Liles wrote an online review about Neuman's wedding company -damaging to business but NOT enough for Liles to be liable -crazy review made it clear it was opinion -court: language and context was enough to prove the defendant was not liable The SC of Oregon concluded that the review that Lies posted of Neumann's wedding property business was not defamation, and was entitled to first amendment protection.

Defamation and Public Officials and Figures  

Public officials and figures (NYT case) stern proof-of-actual-malice requirement (1st A-based fault requirement) – knowledge of falsity or reckless disregard for truth AND clear-and-convincing-evidence Voluntary placement of themselves in public spotlight

Bertrand v. Mullin Two political candidates run commercials against one another, Mullin made one saying Bertrand had something to do with selling children sleeping drugs Evidence pointed to Mullin not knowing enough to say it's true, but also not knowing enough to say it was false So could not prove actual malice! just irresponsibility Jury verdict in favor of Bertrand reversed

Defamation and Private Individuals  1. 2. 

If a private issue, must prove: -negligence for liability and proven actual injury -negligence for presumed and punitive damages If a public issue, likely negligence for liability and actual damages, likely actual malice for presumed and punitive damages

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Gertz (1974) private figure plaintiff cases Dun (1985)(added public concern factor). Public concern, for purposes of second Gertz/Dun rule: Statements dealing with crime, public health, safety, welfare, comparably impt matters Media does not get more 1st Amendment protection

Invasion of Privacy Torts Intrusion on Solitude or Seclusion    

Applies only when reasonable expectation of privacy; intrusion must be highly offensive to reasonable person May be physical (illegal search of body/home, opening someone’s mail May be nonphysical (examine bank account, tap phone, harassing phone calls, not usually apply to telemarketers) Not examining public records or observe/photo in public place

Public Disclosure of Private Facts    

Publicizing facts concerning someone’s private life can be an invasion of privacy IF publicity would be highly offensive to reasonable person. Failure to pay debts, humiliating illnesses, information about his sex life Statements about plaintiff are true, truth not defense, requires widespread publication, internet would suffice Ordinarily no liability for publicity concerning matters of public record or legitimate public interest; public figures/officials no right of privacy concerning information reasonably related to their public lives

False Light Publicity           

Violation of identity that accompanies it being misrepresented publicly Publicity that places person in a false light in the public eye if that false light would be highly offensive to a reasonable person. Attributing to a person characteristics that does not have or beliefs that does not hold Signing a person’s name to a public letter that violates her deeply held beliefs; Attributing authorship of an inferior scholarly/artistic work Some states don’t rec separate false light cause of action Like defamation: truth is defense; likely same 1st A protections Different than defamation Published: Defamation: Statement; FL: Information Protected: D: Injury to reputation; FL: Offense/embarrassment that arises from misleading or untrue implication Dissemination: D: One other person; FL: Public disclosure D: Not require statement be offensive or embarrassing. Non-offensive statement about a person can harm reputation. FL: Demands supposed implication be offensive or embarrassing Defamation only demands reckless disregard if public official/figure;

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FL: Demands D made implication or misleading disclosure with RECKLESS DISREGARD. High standard.

Commercial Appropriation of Name or Likeness      

Oldest form of invasion of privacy; inheritable; expansive scope Recognition of personal property right; right to control one’s own identity W/out consent, D commercially use P name or likeness, normally to imply endorsement of product/service or nonexistent connection w/D business Include things connected in mind: Famous car, voice, phrase Normally must be commercial; Not all underlie profit motives commercial – celeb name/likeness used in a movie/TV usually not consider commercial Courts tend hold intermediate commercial speech protection NOT insulate D from using P’s name, likeness, identity in context of commercial speech.

Jordan v. Jewel Food Stores, Inc. Jewel used an ad spot in TIME magazine to celebrate the inductee Michael Jordan into the basketball HOF. Jordan sued for violation of his publicity. Jewel was initially granted summary judgement saying that their ad was noncommercial speech. Case was then reversed as it was determined their ad qualified as COMMERCIAL SPEECH.

Misuse of Legal Proceedings 

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Malicious prosecution – requires proof 1) D caused criminal proceedings to be instituted against P without probable cause to believe offense been committed, 2) D did so for improper purpose, and 3) criminal proceedings eventually terminated in P favor Wrongful use of civil proceedings. Similar elements. Proof of P guilt generally held to be a complete defense to liability. Issue of P guilt can be retried in the malicious prosecution case, despite his acquittal in criminal proceedings. Different civil standard! Proof of the plaintiff's innocence, however, cannot support a malicious prosecution action if criminal proceedings not terminated in his favor. Imposes liability on those who initiate legal proceedings, criminal or civil, for primary purpose other than the one for which proceedings designed.

Deceit (Fraud)   

Tort claim available to victims of knowing misrepresentations Most arise in a contractual setting and as part of contract and tort claims Typically require: Proof of false statement of material fact, knowingly or recklessly made by D, with intent to deceive P, along with actual, justifiable, and detrimental reliance on the part of P

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Interference With Property Rights Trespass to Land     

Any unauthorized or unprivileged intentional intrusion upon another’s real property Intent required is simply intent to be on land or to cause it to be invaded Where trespass specifically intended, no actual harm to land is required Where reckless or negligent trespass, actual harm required – i.e. mistaken belief that entry was justified Noninclusive list in which the tort can occur: Physically entering P land; causing another to do so (chasing); remaining on land after right to remain ceased (staying past lease term); failing to remove from land anything one has duty to remove; causing an object or other thing to enter land (some nuisance overlap); invading airspace above land or subsurface beneath (sometimes)

Private Nuisance      

Substantial and unreasonable interference w/P use & enjoyment of land Usually not involve phys invasion of property (odor, smoke, light, vibration) Don’t have to intend harm (understanding of intent here) Private – particular harm to her own property, not harm to public generally Public – Public in general suffers. If no particular harm gov’t is appropriate party to seek abatement (elimination) Most nuisances don’t involve the invasion of tangible matter discussed earlier. Some invasions could go either way.

Toyo Tire North America Manufacturing, Inc. v. Davis Davis's argued that the manufacturing plant next to their house constituted trespassing and nuisance claims based on the noise, lights, odors, black dust, and increased traffic. Judgment of Court of Appeals affirmed; Toyo Tire’s motion for summary judgment correctly denied.

Conversion  

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D intentional exercise of dominion over P personal prop w/out P consent Ways in which conversion may occur: acquisition of P’s property (theft, fraud, purchase of stolen property – possible to be liable for conversion if buy/sell stolen property in good faith); removal of P property (taking property to dump, moving P car); transfer of P’s property (selling stolen goods, misdelivering property); withholding possession of P property (refusing to return car that was in for repair); destruction or alteration of P property; using P property (driving car left for storage only) Necessary intent only intent to exercise dominion or control over property 7

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Interference w/P property rights has to be serious. Other interferences not rise to level of conversion – possible trespass to personal property claim

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Failure to use reasonable care Plaintiff need to prove that defendant had - Duty, breach, actual cause, proximate cause, damages(harm)

Negligence

Duty of Reasonable Care and Breach of Duty  

Was the duty owed? Duty of reasonable care if among those foreseeably be at risk of harm stemming from D activities or conduct or if special relationship

Kesner v. Superior Court Examined whether employers and landowners owe a duty of care to prevent secondary exposure to asbestos, found it was "reasonably foreseeable that the workers will act as vectors carrying asbestos to their family members" 

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Special duties: R member of profession(doctors lawyers), common carriers, innkeepers, landlords, foreseeable 3d criminal acts, duties to persons on property1. Invitees: must protect against dangerous on-premises conditions knows about, or reasonably should discover, and that invitee unlikely to discover. Public and business invitees 2. Licensees: obligated to warn licensees of dangerous conditions unlikely to discover. Enter for own purposes but has consent (sometimes implied); some courts no distinction between invitees & licensees – duty of R care 3. Trespassers: no consent/privilege, traditionally: no duty to exercise for their safety, just duty not to willfully and wantonly injure trespassers once t presence known (higher duty regularly enter and children). Modern courts erode distinctions

Breach 

How would reasonable person behave? Objective; flexible; factor balancing; R foreseeability of harm most impt; seriousness of harm; social utility of D conduct; ease/difficulty of avoid risk; context (emergency?); personal D characteristics (limited); R person with same disability; R child; mental deficiencies ordinarily not relieve; vol/negligent intoxication not relieve

Currie v. Chevron U.S.A., Inc. Found that Chevron owed a legal duty to Currie. The Chevron employee breached the duty when she saw the conflict, noticed the lack of nearby vehicle, and still activated the gas pump. With the use of the gas from the pump, Antoine was doused in gasoline and set on fire. The only way Antoine could be set on fire with the gasoline, is with he authorization of the Chevron attendant.

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Lord v. D & J Enterprises, Inc. Lord filed a negligence case against D&J after she was shot while trying to receive cash from a wired deposit. She was trying to recover for what she described as "catastrophic brain injuries" because D&J breached it's duty to use reasonable care to protect her by not having security. D&J won summary judgement, but it was reversed because the crime was shown to have been foreseeable.

Negligence Per Se D violation of statutes/laws may create a breach of duty and may allow P to win case  Negligence based on violation of a law What proof needs to be given to establish Negligence Per Se? 1. Plaintiff is within the class of people intended to be protected by the law; and 2. Plaintiff suffered the sort of harm that the law was intended to protect against 

Winger v. CM Holdings, L.L.C. railing wasn’t high enough found negligence per see, railing are meant to protect children. Held that the doctrine of negligence per se applied to the violation of a municipal housing code and therefore is not limited to statewide laws; landlord's argument that the old code applied as a matter of law was correctly rejected, the Housing Appeal Broad's extension of time for the Landlord to comply with the code simply suspended administrative penalties without excusing tort liability. Court of Appeals decision vacated; trial court’s post-trial ruling on negligence per se issue reversed; other trials court orders affirmed in part and reversed in part; case remanded for new trial.

Causation of Injury        

Has to be an actual injury, personal (bodily), property, economic Compensato...