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Torts Outline List

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1 - Negligence 2 - Defamation - Libel - Slander - Constitutional Defamation 3 - Invasion of Privacy - Intrusion Upon Seclusion/Priv Aff - Misapprop of Name/Likeness - False light - Publication of Private Facts 4 - Products Liability - Strict Liability - Negligence - Implied Warranties - Representation/Express Warr. -Intent 5 - Intentional Torts -Battery - Assault - Intentional Infliction of Emotional Distress -IIEB - Third Party Recovery - Trespass to Chattels -Conversion -False Imprisonment -Shopkeeper's Privilege 6 - Vicarious Liability - Respondeat Superior 7 - Third Party Recovery

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NEGLIGENCE

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A prima facie case for negligence consists of (1) DUTY; (2) BREACH OF THAT DUTY; (3) CAUSATION; and (4) DAMAGES.

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1 - Duty (Definition - 2 approaches)

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All people have a DUTY to prevent an unreasonable risk of harm to others. Under the majority (CARDOZO approach) a duty is owed to only those plaintiffs that are foreseeable and in the ZONE OF DANGER. (INSERT FACTS). Under the minority view (ANDREWS approach) a duty is owed to ALL. (INSERT FACTS)

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1 - Duty (Standard of Care)

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STANDARD OF CARE Absent a special relationship, the standard of care for this duty is one of reasonableness. All people are entrusted to act as the reasonable and prudent person would in the same or similar circumstances. Whether a person has acted reasonably is judged objectively. (if there is no heighten std of care, skip to breach)

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1 - Duty (Heightened Std of Care)

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HEIGHTENED STANDARD OF CARE People entrusted with a heightened standard of care are liable for even slight negligence.

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2 - Breach

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A breach occurs when a defendant fails to conform to the standard of care. As noted, here the standard of care is one of reasonableness (OR heightened reasonableness and care)

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3 - Causation

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Causation must be both ACTUAL and PROXIMATE. ACTUAL CAUSATION is BUT FOR causation wherein the defendant is only liable if the injury would not have occurred but for his negligence. PROXIMATE CAUSATION exists when the act and resulting injuries were a FORESEEABLE result of defendant's conduct or the defendant's conduct was a SUBSTANTIAL FACTOR in causing the injury.

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4 - Damages

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A plaintiff must prove damages in the form of physical injury or property damage. Economic harm alone is insufficient for a claim of negligence.

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DEFENSES TO NEGLIGENCE

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(Only discuss those that apply) Contributory Negligence Comparative Negligence Assumption of Risk

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If No Defenses to Negligence

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All of the defenses to negligence carry some degree of fault on the part of plaintiff. Here plaintiff was an (innocent passenger or bystander) and did not contribute to his or her injuries; therefore, no defenses apply.

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DEFAMATION

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Common law defamation requires a showing of (1) a DEFAMATORY STATEMENT; (2) OF OR CONCERNING PLAINTIFF; (3) PUBLICATION; and (4) DAMAGES.

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1 - Defamatory Statement

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A defamatory statement is one that INJURES a plaintiff's REPUTATION and tends to subject the plaintiff to HATRED, CONTEMPT and RIDICULE or FINANCIAL INJURY.

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2 - Of or concerning Plaintiff

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The plaintiff must establish that a reasonable recipient of the information would understand that the statement REFERRED to plaintiff.

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3 - Publication

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Publication requires that the statement be COMMUNICATED to a third party who UNDERSTANDS the defamatory meaning and its APPLICATION TO PLAINTIFF.

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4 - Damages

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The type of damages the plaintiff must prove depends of the type of defamation.

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LIBEL

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Libel is defamation that is WRITTEN. When libel occurs, general damages are presumed. However, the plaintiff may offer actual evidence of damages to increase his or her award.

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Libel Per Se and Libel per Quod

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In a minority of jurisdictions, courts distinguish between LIBEL PER SE (libel that is defamatory ON ITS FACE) and LIBEL PER QUOD (libel that is NOT defamatory on its face).

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SLANDER

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Slander is defamation that is SPOKEN. In cases of slander, plaintiff must prove damages unless the demotion is slander per se.

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Slander Per Se

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Slander per se exists when the defamatory statement (1) adversely reflects one's conduct in a business or profession; (2) accuses one of having a loathsome disease; (3) accuses one of a guilt involving a crime of moral turpitude or (4) suggests a woman is unchaste.

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CONSTITUTIONAL DEFAMATION

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When the defamation involves a matter of PUBLIC CONCERN, the plaintiff must prove 2 additional elements (1) FALSITY and (2) FAULT.

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Matters of Public Concern

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Falsity (Insert Facts) Fault - The type of fault plaintiff must prove depends on whether the plaintiff is a public or private figure. If the plaintiff is a PRIVATE figure, NEGLIGENCE must be shown. If plaintiff is a PUBLIC figure, MALICE must be shown.

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Malice

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Malice is defined as KNOWLEDGE that the defamatory statement was false or RECKLESS DISREGARD as to the statement's truth.

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Defenses to Defamation (4)

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1 - Truth (Insert Facts) 2 - Consent (Insert Facts) 3 - Absolute Privilege 4 - Qualified Privilege

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Absolute Privilege

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The defendant may assert an absolute privilege for remarks made (1) during judicial proceedings; (2) by legislators in debate; (3) by federal executive officials; (4) in compelled broadcasts; and (5) in between spouses.

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Qualified Privilege

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The defendant may assert a qualified privilege for (1) reports of official proceedings; (2) statements in the interest of the publisher; (3) statements in the interest of the recipient; and (4) statements in the common interest of the publisher and recipient.

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INVASION OF PRIVACY (4)

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There are 4 different torts that comprise the tort of invasion of privacy. To sue successfully for invasion of privacy, the plaintiff only has to prove one of the 4 torts. They are: 1 - Intrusion Upon Seclusion or Private Affairs; 2 - Misappropriation (Appropriation of Name or Likeness); 3 - False Light; and 4 - Publication of Private Facts.

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1 - Intrusion Upon Seclusion or Private Affairs

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A plaintiff has a claim for intrusion upon seclusion or private affairs when a defendant INTRUDES upon the SOLITUDE OR SECLUSION of another OR his PRIVATE AFFAIRS in a way that is OBJECTIONABLE TO A REASONABLE PERSON. Affairs and areas are private when a plaintiff has a REASONABLE EXPECTATION OF PRIVACY IN THEM. Intrusion (insert Facts) Seclusion (insert Facts) Private Affairs (insert Facts)

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2 - Misappropriation (Appropriation of Name or Likeness)

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Misappropriation occurs when a defendant engages in an unauthorized use of plaintiff's name or likeness for commercial benefit. Liability is limited to commercial advertisements or promotions.

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3 - False Light

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False light occurs where a defendant GIVES PUBLICITY TO PLAINTIFF concerning VIERS HE DOES NOT HOLD OR ACTIONS HE DID NOT TAKE. The false light must be highly OFFENSIVE to a reasonable person and the information must be MADE PUBLIC.

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4 - Publication of Private Facts

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This tort is committed when a defendant publicly discloses private information about plaintiff that is HIGHLY OFFENSIVE TO A REASONABLE PERSON and not of LEGITIMATE CONCERN to the public.

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Invasion of Privacy (Elements)

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1 - One of the above - Intrusion upon Seclusion of Priv Aff - Misappropriation of Name/Likeness - False Light - Publication of Private Facts COMMON ELEMENTS: In order for a plaintiff to have a claim for any of these torts, plaintiff must also establish (1) CAUSATION and (2) DAMAGES. 2 - Causation (insert facts) 3 - Damages (insert facts)

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Invasion of Privacy (Defenses)

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(1) Consent (2) Absolute Privilege (3) Qualified Privilege

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Defense - Consent

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(insert facts)

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Defense - Absolute Privilege

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Defendant may assert an absolute privilege for remarks made (1) during JUDICIAL PROCEEDINGS; (2) by LEGISLATURES IN DEBATE; (3) by FEDERAL EXECUTIVE OFFICIALS; (4) in COMPELLED BROADCASTS; and (5) in between SPOUSES.

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Defense - Qualified Privilege

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Defendant may assert a qualified privilege for (1) REPORTS OF OFFICIAL PROCEEDINGS; (2) statements in the INTEREST OF PUBLISHER; (3) statements in the INTEREST OF RECIPIENT; (4) statements in the COMMON INTEREST OF THE PUBLISHER AND RECIPIENT.

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PRODUCTS LIABILITY - MANUFACTURER (5 Theories)

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There are 5 theories of liability upon which to base a products liability claim: 1 - STRICT LIABILITY 2 - NEGLIGENCE 3 - IMPLIED WARRANTIES 4 - REPRESENTATION/EXPRESS WARRANTIES 5 - INTENT

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PL#1 - STRICT LIABILITY

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The prima facie case for struck products liability is 1 - STRICT DUTY 2 - BREACH of that duty (supply of defective product) 3 - CAUSATION 4 - DAMAGES

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1 - Strict Duty

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Commercial suppliers have a strict duty to supply safe products that are free from defects.

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2 - Breach

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Under a strict liability theory, a breach occurs if the defendant supplies a 1 -DEFECTIVE PRODUCT and 2 - that product was DEFECTIVE WHEN IT LEFT DEFENDANT'S CONTROL.

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Breach A - Defect (3 types)

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There are 3 types of defects: 1 - DESIGN defect 2 - MANUFACTURING defect 3 - INADEQUATE WARNINGS A product can only be defective if it is UNREASONABLY DANGEROUS.

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Design Defect

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A design defect occurs when every product on an assembly line has the same dangerous propensities. To prove the existence of a design defect, the plaintiff must show either that (1) the product failed to perform as safely as the ORDINARY CONSUMER WOULD EXPECT anticipating REASONABLE MISUSE (the CONSUMER EXPECTATION TEST); or (2) that the defendant could have made the product safer without serious impact on the PRODUCT'S PRICE OR UTILITY (the FEASIBILITY OR RISK-UTILITY TEST).

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Manufacturing Defect

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A manufacturing defect occurs when ONE of the products on an assembly line is more defective than the rest. To prove a manufacturing defect, the plaintiff must prove with of the two elements laid out under the design defect section.

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Inadequate Warning

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Inadequate warnings are a type of design defect that result from the manufacturer's failure to give adequate warnings as to the risks involved in the product. For liability to attach, the danger must NOT be APPARENT TO USER and use of the warning must NOT have a SERIOUS IMPACT ON THE PRODUCT'S PRIVE OR UTILITY.

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Breach B - Present When it Left Defendant's Control

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(insert facts)

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3 - Causation

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ACTUAL CAUSATION This element is inferred if the defect was present when it left defendant's control. PROXIMATE CAUSATION Proximate causation exists when the act and resulting injury were a FORESEEABLE result of defendant's conduct or the defendant's conduct was a substantial factor in causing the injury.

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4 - Damages

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Plaintiff must prove that he or she sustained damages in the form of physical injury.

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Defenses

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(insert facts)

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PL#2 - NELIGENCE THEORY OF PRODUCTS LIABIITY

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In order for a plaintiff to recover under a "negligence" theory for products liability, plaintiff must show that the manufacturers of the product had 1 - a DUTY to plaintiff 2 - that the manufacture BREACHED that duty, and 3 - that breached duty CAUSED 4 - DAMAGES

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1 - Duty & Breach

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DUTY AND BREACH Breach of duty is inferred when NEGLIGENT CONDUCT leads to the supplying of a DEFECTIVE PRODUCT. Defect has been discussed above.

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1 - Duty & Breach (Neg Conduct)

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NEGLIGENT CONDUCT (insert facts)

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2 - Causation

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(see above)

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3 - Damages

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(see above)

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4 - Defenses

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(insert facts)

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PL#3 - IMPLIED WARRANTY

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There are 2 warranties implied in every sale of goods that can serve as the basis for a products liability suit. Any BUYER, FAMILY MEMBER OR HOUSEGUEST can sue under these theories and the plaintiff does NOT have to prove FAULT on the part of the defendant

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1A - Warranty of Merchantability

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This warranty if breached when the goods are NOT of AVERAGE ACCEPTABLE QUALITY or are NOT FIT for the GENERAL PURPOSE for which they were intended.

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1B -Warranty of Fitness for a Particular Purpose

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This warranty is breached when the defendant has reason to know the particular purpose for which the consumer goods are required, and that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods that conform to that purpose.

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Defenses

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(insert facts)

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PL#4 - EXPRESS WARRANTY/REPRESENTATION THEORIES

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Breach of an express warranty arises when a product does NOT CONFORM to the AFFIRMATIVE REPRESENTATIONS made by the defendant. The representation must have been part of the bargain at the time the purchase was made. Any consumer, user, or bystander can sue under this theory. (insert facts)

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Defenses

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(insert facts)

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PL#5 - INTENT

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A defendant will be liable to anyone injured by an unsafe product if the defendant INTENDED the consequences or knew that they were SUBSTANTIALLY CERTAIN to occur. If intent i present, most likely tort is BATTERY. Any injured party can sue under this theory. (insert facts)

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Defenses

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(insert facts)

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VICARIOUS LIABILITY

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(Put this BEFORE you discuss the tort of the employee) The question is whether the employer is liable for the for of the employee even though employer was not the direct cause of plaintiff's injury. Vicarious liability is the liability of one party for the torts committed by another party.

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Respondeat Superior

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Respondeat superior is a type of vicarious liability wherein the employer is liable for the torts committed by its employees who are acting in the COURSE AND SCOPE of their employment. Therefore, in order to determine the liability of employer, it is necessary to determine whether employee committed a tort within the course and scope of employment. (insert facts)

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Was Employee in Scope of Employment at time tort occurred?

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INSERT TORT HERE (tort committed by employee)

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INTENTIONAL TORTS

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1 - Battery 2 - Assault 3 - Intentional Infliction of Emotional Distress

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Battery - 3 types

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1 - Defendant intends to commit an offensive or harmful contact,and an offensive or harmful contact results; 2- Defendant intends to commit an assault, and an offensive or harmful contact results; 3 - Defendant commits an act, which he knows or should know, creates a SUBSTANTIAL CERTAINTY that a harmful or offensive contact will occur.

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Assault

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1 - An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contract 2 - Intent on the part of the defendant to bring about apprehension of immediate harmful or offensive contact in the plaintiff 3 - Causation

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Intentional Infliction of Emotional Distress

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1 - EXTREME & OUTRAGEOUS conduct 2 - intent by defendant that plaintiff suffer SEVERE emotional distress or RECKLESSNESS 3 - Causation 4 - Damages - SEVERE emotional distress

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IIED - Third Party Recovery

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When the defendant causes physical harm to a third party and the plaintiff suffers emotional distress because of her relationship to the injured person 1 - Plaintiff must be present 2 - Plaintiff was a close relative to the injured person 3 - Defendant knew or should have known of the presence of the plaintiff and 4 - Actual damages are required.

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Negligent Infliction of Emotional Distress

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Defendant creates a foreseeable risk of physical injury to plaintiff either by 1 - causing a threat of physical impact that leads to emotional distress OR 2 - Directly causing severe emotional distress that causes physical symptoms to plaintiff

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Trespass to Chattels (Personal Property)

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...

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Conversion (Personal Property)

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...

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TRESPASS TO LAND

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1 - Intentional 2 - Unintentional 3 - Accidental

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INTENTIONAL Entries to Land

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-Defendant is liable for intentional entries onto the land of another -Damage to the land is NOT required -Mistake is NO defense

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UNINTENTIONAL Entries to Land

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A person is NOT liable to respass for negligent or reckless entries to land of another UNLESS he causes DAMAGE to the land.

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ACCIDENTAL Entries to Land

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There is NO LIABILITY for trespass for accidental entries that are unintentional and non-negligent.

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False Imprisonment

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1 - an act by the defendant that confines or constrains the plaintiff 2 - to a bounded area 3 - Defendant intends to confine 4 - Causation

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Shopkeeper's Privilege (Defense to FI)

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If a shopkeeper reasonably believes that a theft has occurred, he is privileged to make a detention in a reasonable manner for a reasonable period of time.

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