Bar Review

Intentional Torts

Always assume you're dealing with a normal person for the plaintiff. Ignore their oddities.
Incapacity is not a defense for torts.
Intent to commit a tort transfers to other torts.

Battery

Two elements:

1. Harmful or offensive contact
2. With the plaintiff's person

Harmful contact is never tested. It will only be offensive.
Offensive = unpermitted

Your person includes anything you're holding or intimately connected to like a horse you're riding.

Assault

Two elements:

1. Must place in reasonable apprehension (knowledge)
2. Of imminent battery

You must see it coming, but you don't have to be afraid of the result.
An apparent ability creates a reasonable apprehension.

Immediacy

Words alone are not sufficient to create immediacy. There must be conduct—a menacing gesture, usually brandishing a weapon.
Words can negate immediacy though, by implying it won't be immediate.

False Imprisonment

Two elements:

1. The defendant must commit an act of physical restraint.
2. The plaintiff must be restrained in a bounded area.

Threats are sufficient restraint.
"If you leave, we'll call the police" is a restraining threat.

A failure to act can be an act of restraint if there is an owed duty.
Leaving a handicapped customer can be imprisonment.

The plaintiff has to be aware of or harmed by the restraint.

An area is not bounded if there is a reasonable way to exit the plaintiff should reasonably discover.
A gross or dangerous way to escape is not a reasonable means of escape.

Intentional Infliction of Emotional Distress

Can be reckless.

Two elements:

1. Defendant must engage in outrageous conduct.
2. Plaintiff must suffer severe emotional distress.

Outrageous conduct is conduct that exceeds all bounds of decency tolerated in civilized society.
Often based on repeated behavior, such as with sexual harassment or debt collectors.
If a common carrier does something to distress its customers, it's often IIED.
Often IIED if against emotionally vulnerable people, mainly children, elderly, or pregnant women.
If the defendant has advanced knowledge of some emotional fear or weakness, targeting that is outrageous.

No specific evidence is required. In theory, the plaintiff could just claim he was distressed.
Problems just can't say that the plaintiff was "mildly annoyed".

Trespass to Land

Two elements:

1. Physical invasion
2. Of plaintiff's land

A defendant is not required to know he crossed the boundary line.
A physical invasion can also include, throwing a tangible object onto the land.

Land includes the air above and soil below for a reasonable distance.

Trespass to Chattels and Conversion

Chattels = personal property

Property can be damaged or taken.

If the magnitude of harm is great, it's conversion, if small, trespass to chattels.
In conversion, the damage is so great, that the full value of the item is the damages.

Question of ownership is not a defense for these.

Intentional Torts' Affirmative Defenses

Consent

Consent is a defense to all seven intentional torts.

People must have the mental capacity to consent.
People with limited mental capacity can consent to things they understand.

Consent can be express or implied.
Consent obtained through fraud or duress is void.

Consent can be implied by custom and usage.

Consent can be also be implied by the defendant's reasonable interpretation of the plaintiff's conduct. You can consent by your body language.

All consent has a scope. You only consent to what you consent to.

Protective Privileges

1. Self-defense
2. Defense of others
3. Defense of property

All come from when there is a threat from the plaintiff.

The threat must be in progress or imminent.
There cannot be preemption or revenge.

The defendant must believe the threat to be genuine. But it includes if you are actually wrong.

The force responded with must be proportional.

Necessity

Only apply to property torts

Public Necessity

When the defendant commits a property tort to protect the community as a whole or a significant number of people.
This will be like saving a neighborhood from a fire or flood by damaging or taking property.

Private Necessity

You still have to pay for any actual harm.
You don't have to pay for nominal or punitive damages.
The property owner is not allowed eject a trespasser during an emergency.

Negligence

Elements:

1. Duty
2. Breach
3. Causation
4. Damage

Duty

Duty is your obligation to reduce your risk to other people.

Foreseeability

You owe your duty to your foreseeable victims and not to unforeseeable victims.
People are unforeseeable outside the zone of danger.
People far away are probably unforeseeable.
An exception is rescuers, who are foreseeable victims, even if they started far away. "Danger invites rescue."

Reasonably Prudent Person Standard

Your duty owed is the degree precaution that would have been exercised by a hypothetical reasonably prudent person acting under similar circumstances.
The standard is the same for every person. It doesn't matter if the defendant is stupid, clumsy, or a novice.
However, if the defendant has increased skill or knowledge in an area, he will be held to the standard of a reasonably prudent person with that skill or knowledge. A race car driver driving to work will be held to the standard of a reasonably prudent race car driver. Someone who knows of a dangerous situation should act reasonably in accordance with that knowledge.
A defendant's physical characteristics are taken into consideration. A blind person should act like a reasonably prudent blind person.

Special standards of care

1. Children under the age of 5 have no standard of care
2. Older children are expected to behave as a child of similar age, experience, and intelligence under similar circumstances. (Subjective, the opposite of adults)
   However, if they were participating in adult activities (Read: operating a motorized vehicle), use the reasonably prudent person standard.
3. Professionals owe the care of an average (not reasonable) member of the same profession providing similar professional services. They must conform to their professional custom.
   This will require and expert witness, typically allowed to be from anywhere.

4. Premises Liability

   1. Unknown trespasser is owed no duty of care and always loses.
   2. Known and anticipated trespassers are owed a duty only to protect against hazards that are all:
      1. Artificial
      2. Highly dangerous
      3. Concealed
      4. Known to the possessor
      • (No man-made death traps)
   3. Licensees (social guests, solicitors, etc.) are owed to duty to protect against hazards concealed to them and known to you.
   4. Invitees (people entering to confer economic benefit or entering a place open to the public) are owed a duty to protect against hazards concealed that are known or could be discovered by a reasonable inspection.
      
      

      Firefighters and police are never able to recover for injuries expected as an inherent risk of the job.
      A property owner must exercise reasonable prudence to trespassing children with regard to trespassing children. (Something dangerous that pulls children in, an attractive nuisance)

      
      The easiest way to satisfy the duty is to put up a warning sign to convert a hidden danger to an open danger.

5. Statutory standards of care apply if the statute is designed to protect the class of people the plaintiff is a member of and to prevent the class of injury that occurred in this case. (Negligence per se)

   • If compliance would have been more dangerous than violating the statute, negligence per se will not apply.
   • If compliance was impossible, negligence per se will not apply.

There are no duties to act affirmatively. You never have to take an action, but if you do take a course of conduct, you have to act reasonably. This means there is no duty to rescue.

• Except if there is a pre-existing legal relationship. E.g., a hotel owes its customers a duty.
• If you caused the danger, you owe a duty to act reasonably under the circumstances.
• If you opt to rescue and perform it carelessly, you are liable absent a Good Samaritan law.

Negligent Infliction of Emotional Distress

NIED requires the defendant to act negligently.

There are two ways to establish NIED:

1. Nearly miss injuring the plaintiff, such that he was in the zone of physical danger, but still suffer physical manifestations of emotional distress.
2. Cause serious injury or death to someone else that the plaintiff witnessed as a bystander
   • The plaintiff must be a close family member (parent, child, or spouse) to the person injured or killed.
   • The plaintiff must be close in time and space, seeing it in real-time.
3. Careless performance of a business relationship between the defendant and the plaintiff that is highly likely to cause emotional distress
   • Doctor incorrectly says you have cancer
   • Funeral home messes up with relative's corpse

Breach

Breach can be because of doing something stupid or not doing something you should have, but you have to explain why that is a breach.

Res Ipsa Loquitur

Applies if shown that:

1. The injury is the type normally caused by negligence.
2. An accident of this type is normally due to negligence of someone in the defendant's position.

Causation

Factual Causation

Uses the but-for test

Merged Causation

Uses the substantial factor test, which isn't super clear, but if it could have caused the injury alone it's definitely a substantial factor

If the cause is unknown but multiple defendants were negligent and could have caused it, they are jointly liable unless they can prove they didn't do it.

Proximate Causation

Think of proximate cause as fairness.
Typically self-evident, so only relevant in weird cases

Judged by whether the result was foreseeable.

Four main fact patterns where the resulting harm is foreseeable:

1. Intervening medical malpractice
2. Intervening negligent rescue
3. Intervening protection or reaction
4. Subsequent disease or accident

(If you injure people and it gets worse or hurts others by malpractice, someone trying to help, people panicking, or the victim hurting himself because of his injuries, you're liable for all those results.)

Defamation

At common law, requires that:

1. The defendant made a defamatory statement at specifically identifies the plaintiff
   • A defamatory statement is one that harms one's reputation
   • Usually involves an allegation of fact that reflects adversely on one's character.
   • A statement of opinion is only defamatory if it implies facts.
   • The plaintiff must be alive at the time the statement is made.
2. The statement must be published. (Shared with one other person)
   • It doesn't have to be intentionally published. A negligent publication is sufficient.
   • People spreading it can each be liable too as republishers.
3. Damages
   • Damages are presumed and thus not proven for libel.
     • Libel is defamation in a permanent medium.
   • Slander per se also has damages presumed.
     • Slander per se is a statement:
       1. Related to one's business or occupation
       2. That one has committed a serious crime (violence or dishonesty)
       3. That imputes unchastity to a woman
       4. That one has a loathsome disease (leprosy or an venereal disease)
   • Other forms of slander require damages to be proven.

Defenses

1. Consent
2. Truth
3. Privilege
   • Absolute privilege for spouses or government officers in their work
   • Qualified privilege occurs when there is a public interest in encouraging candor
     • References and recommendations
       • Person must have a reasonable and good faith basis
       • Must confine oneself to the matter at hand

If subject is a matter of public concern (newsworthy), two additional elements are required for defamation:

1. The plaintiff must prove the statement is false.
2. The plaintiff must show some degree of fault.
   • Public figures must show that the statement was made despite knowing it was false or with reckless disregard of its veracity. (Made with malice)
   • Private figures must show that the statement was made negligently.

Privacy

Privacy is basically four small torts:

1. Appropriation
   • The defendant uses the plaintiff's name or image for a commercial purpose.
   • There is a news exception.
   • Doesn't have to be a celebrity
2. Intrusion
   • Invasion of the plaintiff's seclusion in a way that would be highly offensive to the ordinary person
     • E.g., wiretapping, eavesdropping, peeping, intercepting emails, planting cameras, etc.
   • You have to be in a place you have a reasonable expectation of privacy. I.e., your home
3. False light
   • The widespread dissemination of a material falsehood about the plaintiff that would be highly offensive to the ordinary person
   • The same statement can be both defamation and false light. Defamation is to recover for the economic damages; false light is to recover for emotional damages.
   • Don't have to be intentional
4. Disclosure
   • Widespread dissemination of confidential information about the plaintiff that would be offensive to the reasonable person
   • Sending a lot of people your medial records or tax information
   • Again there is a newsworthiness exception
   • Not confidential if you've shared them, even if you wanted to keep it secret from some group

Defenses

1. Consent is a defense to all four
2. The defamation absolute and qualified privileges are defenses to false light and disclosure