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Tort law refers to any given body of law that creates and provides remedy for civil wrongs that do not arise from contractual duties. A person who is legally injured may be able to use tort law to recover damages from someone who is legally responsible, or "liable," for those injuries. Tort law defines what constitutes a legal injury, and establishes the circumstances under which one person may be held liable for another's injury.
The following list of topics is provided as an overview of and introduction to tort law.
Intentional torts
I. Intentional Torts
Tortious assault -- victim must be placed in immediate apprehension AND tortfeasor must intend to place him in apprehension. Distinguished from criminal assault, where the apprehension of the victim is not an necessary element. Not necessary to prove actual damages. No defense to say it was a joke or assailant changed mind.
Transferred intent -- does not apply if the tortfeasor intended to injure the plaintiff (mistaken identity).
Mistaken identity in battery -- victim not privileged to use force IF he had time to correct the aggressor’s mistake of the victim’s true identity.
Battery -- defendant liable for relatively trivial contacts that are merely offensive and insulting.
Superceding causes & unforeseeability do not factor into casuation in intentional torts; Crimes/Unforseeable intentional torts are sufficiently superceding causes to release the original negligent tortfeasor from liability
Misrepresentation -- requires scienter, not simply a breach of promise (simply changing one’s mind later).
Deceit -- mere silence, a passive failure to disclose is NOT deceit UNLESS there is a fiduciary/confidential relationship: principal/agent, bank/depositor, stockholders, etc.
Entry into property of tortfeasor (e.g. a convertor) to recover property is privileged to enter land at reclaim them at reasonable time and manner. Sometimes there is a requirement to make a demand for return of the property
Defamation: in matters of public concern, a private citizen must show defendant permitted a false and defamatory statement to appear at least through negligence, and therefore caused some damages (anguish ok). However, if malice is shown, then no actual injury necessary.
Defamation -- expressions of pure opinion non-actionable, only statements of fact.
Slander -- requires special damages, not libel
Self-publication -- if the defamed person gets a private defamatory statement, and he himself publishes it to 3d parties, it is still “publication” if the transmission was under some necessity and could be anticipated by the slanderer.
Defenses to defamation -- 1) truth, 2) absolute privilege (judicial, legislative, executive proceedings etc), 3) qualified privilege (public interest and interests of others, usually employment related)
Public figures -- in NY Times v. Sullivan (1964), are not allowed to recover unless there is proof of malice. Public figures are also those who inject themselves into particular newsworthy events or controversies.
Libel -- a private figure may be well-known in some sectors or milieus but that doesn’t make him a public figure. Defined as 1) pervasive fame or notoriety, or 2) voluntary injection into a public controversy.
Libel -- a qualified privilege covers false statements of fact concerning the plaintiff made in good faith (like job recommendations). A qualified privilege of giving information to the police for prevention/detection of a crime (public interest).
Libel -- loss of qualified privilege: 1) statement falls outside the scope of the privilege, 2) statement to person outside the common interest, 3) malice (constitutional malice, not ill will)
Libel -- absolute privilege in 1) judical proceedings, 2) legislative, 3) executive, 4) equal time broadcasts, 5) communications between spouses
Libel -- Private figures in a matter of Public concern: 1) at least negligence, then damages limited to “actual injury,” 2) but if malice proved, then general, even punitive damages apply.
Intentional Infliction of emotional distress -- “major outrage” is the key, not merely hurt feelings. “Extreme outrage,” however, can be found where the defendant knows the plaintiff is especially sensitive and vulnerable to mental distress. Intent also can be constructively found if there is a “high degree of probability that mental distress will follow” and the defendant goes ahead anyway. Recovery only in cases where severe emotional distress ACTUALLY results.
Intentional Infliction of emotional distress, third parties -- when mental distress is caused by a tortfeasor’s conduct which is not directed at the plaintiff, the requirements are 1) the defendant must know the of presence of the 3d party, and 2) the plaintiff was a close relative of the victim UNLESS the plaintiff suffered bodily harm.
False Imprisonment - 1) intent to confine plaintiff or 3d person, 2) result that plaintiff confined (direct or indirect), and 3) plaintiff aware of confinement.
False Imprisonment -- “citizen’s arrest” permissible if a felony committed and the arrestor is under the reasonable belief that the suspect indeed committed the crime, but arresting someone under an unreasonable belief, or holding a legitimate prisoner after mistake is discovered is False Imprisonment. A 30-minute detention by a shopkeeper may be unreasonable.
False Imprisonment -- Police liable unless 1) they show they acted pursuant to a warrant, and 2) the warrant was lawfully made with probable cause at the time.
Trespass to Chattels -- is only an intentional tort.
Intentional Trespass -- mistake is NO defense. Furthermore, requires entry of something tangible, such as microscopic particles, gases, etc, but NOT sound.
Trespass and independent contractors -- principal still liable if he hires in independent contractor to do work which he should know that would require the contractor to perform trespass.
Conversion -- damages are the fair market value at time/place of conversion. The convertor keeps the chattel
Conversion of bailment -- when seriously departs from what is authorized, it is conversion. Minor deviations that do no harm are not conversion.
Public Nuisance -- local govt brings the suit. Exists when a property owner is using his own property in such a manner that it creates an unreasonable risk to public in general. If a private citizen brings this action, he needs to show he suffers some special injury in addition to the injury to the general public.
Nuisance -- “coming to the nuisance” is not an absolute defense, but just one factor the court will consider. The nuisance must infringe on the present possessory interest, thus a landowner who leased his property long term does NOT have standing in a nuisance action. Can apply to persistent phone calls (just as in invasion of privacy), as it is a disturbance of the comfort and convenience of the landowner)
Assumption of risk: not a defense to certain torts under public policy reasons, like when a statute applies to protect a class (e.g. drugs & kids) Also not a defense to intentional torts.
Defense of self-defense grounds will be viewed under a reasonable man standard (so no insane claims of being attacked)
Invasion of Privacy -- misappropriation of likeness requires some commercial aspect. Applies to one’s name as well as image. The “intrusion into solitude” subsection has nothing to do with financial gain, however. Can even apply to unwanted persistent phone calls or wiretapping.
Invasion of Privacy -- the two branches that deal with publicity (placing in a false light and public disclosure of private facts) have the same constitutional privileges as libel. Therefore, in matters of public concern, the plaintiff must show the defendant acted with malice, which is 1) knowledge of falsity, or 2) reckless disregard of the truth. General “malice,” or ill will, spite, is NOT legally sufficient.
Reckless Disregard of Truth -- is a subjective libel standard. The plaintiff must show that the defendant entertained serious doubts as to the truthfulness of the publication.
II. Negligence
Duty: Palsgraf formulation of duty lying within only the “foreseeable zone of danger”
NO duty to control conduct of a 3d party UNLESS a special relationship exists. (common carrier/passenger, innkeeper/guest, employer/employee, school/pupil, jailor/prisoner, landlord/tenant, propreitor/customer, hospitals/patients, psychiatrist/mental patient).
Duty in emergencies -- one confronted with an emergency situation is not held to the standard of conduct normally applied to “normal” situations. “One can be mistaken and yet prudent.”
Master’s Duty -- to exercise care to control a servant even when he is acting outside the scope of his employment, thus, he should NOT retain servants who, to his knowledge, misconduct themselves.
Master/Servant -- employer still responsible for the intentional torts of his employee where its purpose, however misguided, is to further the master’s business. Employer further responsible for torts committed by employee on slight detours from performance of work that are reasonably foreseeable, but not for a “frolic,” which is a substantial unauthorized deviation.
Joint Venture -- usually involves a business or social purpose. Also, a limited time or purpose (mostly) Vicarious liability attaches for torts.
Child’s duty of care -- held to a child of like age, education and experience, unless he is involved in some adult activity.
Duties to trespassers: Undiscovered, no duty. Discovered, duty to warn or make safe “highly dangerous concealed artificial conditions known to owner” that involve risk of death or serious injury. This includes “armed response” security or deadly dogs. License/Easement holders owe all trespassers the duty of reasonable care however.
Attractive Nuisance -- children, because of their youth, do not realise the risk of the dangerous condition.
Fires -- liability only in negligence for letting a fire escape.
Duties to Licensees: Licensees are people that enter the property with permission, on their own business rather the owner’s pleasure. Social Guests are licensees also. Duty to warn of known dangerous conditions, but no duty to inspect or repair.
Duties to Invitees: those entering with express or implied invitation. 1) public (museums etc) and 2) private (customers & employees etc) Duty to make reasonable inspections and make safe dangerous conditions.
Invitees -- come onto the land with the implied reservation that the land is fit for their safety. Thus, even a person who comes onto the land with no intent of conferring economic benefit on the owner/occupier (like going into a store to get change) is still an invitee.
Gratuitous Bailments -- the guest interpreted as a licensee; therefore owner must warn of known defects. Also the licensee/passenger must be shown reasonable care in the driver’s operation of a car.
Motorists Duty -- exercise reasonable care to avoid obvious dangers but also to be alert to discover actual condition of the roadway, thus owing “the other motorists the duty to act reasonably in an emergency situation.”
Violation of statues in tort liability will be excused if compliance is beyond the defendants control (similar to criminal liability). Furthermore, violation of a statute will not be negligence per se when compliance will cause a greater risk of harm than violation, such as in an emergency situation
Superior skills -- if a person has superior skills, his duty is to use them. A professional person, undertaking to perform even gratuitously, still is held to professional standards.
Negligent Infliction of Emotional Distress: 1) defendant created a foreseeable risk of physical injury, 2) emotional distress caused by this conduct also resulted in some physical injury
Municipal Sovereign Immunity -- if the state is engaging in a “proprietary” function (one that can very well be done by a private entity -- e.g. running a parking garage, even provision of water/gas/elec) sovereign immunity will not apply
Vicarious Liability -- principal will be liable for the negligence of independent contractors if the duty is non-delegable on public policy grounds, like condition/safety of premises.
Lessor/lessee Liability -- lessor of land not liable to lessee or to others on land for dangerous conditions which existed when the lessee took possession. 5 exceptions exist.
Seller’s Liability for defects -- a seller is liable for injuries caused by dangerous conditions on land at time of transfer if he fails to disclose them, until the buyer has a “reasonable period of time” to discover and repair. However, if the seller actively conceals the dangerous conditions, he remains liable until the buyer actually discovers.
Negligent Trespass -- there must be damage to land for the occupier to recover.
“Last Clear Chance” doctrine -- a defense against a charge of contributory negligence. Where when the defendant, through failing to exercise vigilance, fails to avoid harm when he, as the last human wrongdoer, failed to avoid the accident. “Last wrongdoer is seen as the worst wrongdoer.”
Emergency situations -- victim rescued in an emergency still owes an independent duty of care to a voluntary rescuer.
Emergency situations -- a “rescuer” still liable, when, in the circumstances of the emergency, his acts were found to be unreasonable.
Negligence per se -- still relieved by superceding causes.
Malpractice -- gross negligence by a hospital is a superceding cause that relieves the original tortfeasor of liability, whereas ordinary negligence does not.
Prenatal injuries -- the surviving child has standing to recover.
III. Strict Liability
Commercial users of a defective product: If a defect in a product is reasonably discoverable, a commercial user will be liable to injured customers
Abnormally Dangerous Activities -- if danger is not the type of harm expected from the activity (slipping on petrol), then strict liability does not apply.
Airplanes -- while not an “ultra hazardous” activity, strict liability still applies to all damage caused by aircraft.
Products -- Inadequate labeling can render a product abnormally dangerous. A product is inherently dangerous if the danger of the product outweighs its utility (like toy guns).
Relabelling products -- one who puts out his own product something manufactured by another is subject to the same liability of defects.
Strict Product Liability: Commercial suppliers can be liable for selling a defective product produced by a manufacturer, and the manufacturer can be liable for producing the product and placing it into the chain of commerce. (e.g. a tire store and tire producer both strictly liable for selling a dangerously defective tire to a customer that explodes and causes damage). Therefore, strict liability is limited to persons engaged in the business of selling products. Not for independent contractors installing the products, for example.
Products -- Under Restatement 402(A) liability exists for even property damage caused by unreasonably dangerous products. This is not binding in most cases though.
Commercial Suppliers: 1) defendant a comm. Suppl. 2) product supplied in defective cond, 3) defect act/prox cause 4) damages
Manufacturers: 1) defect must render the product unreasonably dangerous, 2) defect must be in product when leaving the plant
An intermediaries negligent failure to discover a product defect is not a superceding cause, therefore the supplier of a defective product will be still held liable along with the intermediary commercial seller; a commerical intermediary’s general negligence is not a superceding cause that would relieve a manufacturer of liability
Contributory negligence is not a defense in a strict liability products action, even in traditional contributory negligence jurisdictions. Only defences are the “voluntary and unreasonable encountering a known risk when he is subjectively aware of the risk” and “misuse in an unreasonable manner.”
IV. Damage Apportionment
Damages: “avoidable consequences rule,” plaintiff had duty to mitigate damages to avoid further injuries from tortfeasor’s conduct
Indemnity in Strict Liability Product suits: each supplier of a product is liable to victim but each has a right of indemnity against all previous suppliers in the chain of commerce
Joint & Several Liability: when two or more tortfeasors combine in causing indivisible injury, the aggrieved party can claim the entire judgment from any one defendant.
Contribution: any defendant required to pay more than his share of the damages has a claim of contribution against the other defendants.
Contribution -- a defendant that settles out of court can still recover contribution from a joint-tortfeasor.
Comparative Contribution system: non-paying tortfeasors are required to contribute only in proportion to their relative fault.
Indemnity (common law): one joint tortfeasor recovers against a co-joint tortfeasor due to a considerable difference in degree of fault. If paying tortfeasor was a substantial factor in causing the harm then contribution is appropriate.
“Unit Rule” -- the plaintiff’s negligence is compared to the aggregate of all defendants, then the defendants can recover contribution among themselves. In non-unit-rule jurisdictions, a plaintiff’s recovery barred if the plaintiff’s negligence is greater than the particular defendant he is suing.
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