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Unformatted text preview: PROF. DYSON -‐ TORTS II SUPPLEMENT REVIEW OUTLINE This supplement is not intended to be exhaustive and is not a substitute for class attendance, practice exam completion and rigorous study. Additional black letter law concepts for the tortious interference, malicious prosecution and abuse of process torts are provided on other TWEN electronic course handouts and/or through lectures. Negligence Defense Cont’d: (these will be revisited in Strict Liability and Products Liability coverage as well). Contributory Negligence (C/N): P contributes to own injury (may reduce or bar recovery in some jurisdictions) Contributory Fault (C/F): Recovery based on comparison of negligence between P and D (equal to 50% or 50% or greater than jurisdictions) Assumption of Risk (A/R) will generally bar recovery: • As a general matter, if P expressly or impliedly consents to confront risk, recovery is barred if (1) P recognized and fully understood the danger; • AND (2) P voluntarily chose to encounter the danger anyway. Vicarious Liability Overview I. Introduction II. Employee A. Rule -‐ vicarious liability as long as employee is acting within the scope of employment. III. Independent Contractor A. Rule -‐ no vicarious liability for acts of IC B. Four Exceptions 1. Non-‐delegable duty 2. Employer negligence (e.g. in hiring or supervision of IC) 3. Inherently dangerous activities 4. Illegal Activities IV. Joint Enterprise V. Bailment Analytical Approach to Vicarious Liability Problems I. Analyze tortfeasor’s actions. Discuss elements and defenses for action. A. Negligence B. Intentional Tort C. Strict Liability D. Other II. Look for a special relationship that would lead to vicarious liability for tortfeasor’s actions. A. Types of special relationships 1. Employer(“ER”)/employee(“ee”) 2. Employer(“ER”)/independent contractor(“IC”) 3. Joint enterprise 4. Bailor/bailee III. Apply the rules for each relationship A. Employer/employee 1. Analyze right of control to determine if ee or IC (or degree of control: see O’S 2. General rule: liable for ee torts if ee acting within the scope of employment 3. Tests for scope of employment (different jurisdiction use diff approaches in diff contexts) a. amount of control over tortfeasor b. was tortfeasor motivated to serve or further ER purpose c. character of act: how close to what ee employed to do d. was there a frolic or detour e. going and coming to work f. Modern trend: foreseeability B. Employer/Independent Contractor 1. Analyze right of control to determine if ee or IC 2. General rule -‐ No vicarious liability for acts of IC 3. Four Exceptions a. Non-‐delegable duty b. ER negligence in hiring or supervising c. Inherently dangerous activities (doesn’t have to be as dangerous as abnormally dangerous activities for Strict Liability) d. Illegal activities C. Joint Enterprise 1. Four elements to determine if joint enterprise exists a. A contract or agreement (express or implied) to engage in activity b. Common purpose or goal c. Collective pecuniary interest in the venture d. Roughly equal right of control of enterprise D. Bailment 1. Situation where someone lends a chattel to someone else 2. If bailor is negligent in choosing or supervising bailee, direct liability (own negligence) 3. If bailor not negligent, no vicarious liability unless family purpose doctrine or permissive use (e.g., auto consent) statute applies a. some jurisdictions impose vicarious liability where bailee negligent occurs in presence of bailor Strict Liability Overview I. Introduction to Strict Liability (SL): A. Liability without intent or negligence B. Rationales include: economic (deep pocket, enterprise pay its way, spread risk) and social policy reasons. Strict Liability -‐ Animals What is the type of injury? If property damage, apply trespassing rules, if bodily injury, ask if animal is domestic or wild? 1. Property Damage -‐-‐ If property damage from trespassing – ask what jurisdiction rule are you under? CL JURISDICTION: SL applies for all property damage unless damages was: • a. Not reasonably to be expected from the intrusion; •
• b. Done by animals straying onto abutting land while driven on the highway; or c. Brought about by the unexpected operation of a force of nature, action or another animal, or intentional, reckless, or negligent conduct of a third person. Or if in: NEGLIGENCE JURISDICTION • Ask, was D at fault? No liability unless at fault (negligence); Or if in: FENCING OUT JURISDICTION (if P properly fences out, D is SL); or FENCING IN JURISDICTION (D is SL if she fails to fence in). 2. Bodily Injury – If bodily injury occurred, first determine if wild or domestic animal. • 1. If Wild -‐ most jurisdictions impose SL for wild species w/ dangerous propensity. Don’t look to animal's particular personality; analyze propensity of the species. Harm suffered must be directly related to dangerous propensity. Some jurisdictions have moved to negligent standard for zoos, circuses, parks. • . If Domestic – Does owner know or have reason to know of animal's dangerous propensity? (Check for warnings) If so, liability. Strict Liability -‐ Abnormally Dangerous Activities • A. To determine if D’s actions fall within class of SL activities (abnormally dangerous), three tests may apply: (1) Rylands v. Fletcher: Is there a “non-‐natural” use of the land where peril has “escaped” from land? If so, D is SL. (2) Rest 2nd “Abnormally dangerous” Activity Test: Six factors to determine: • high degree of risk of harm (i.e., handling explosives or flammable materials); • severity of harm (i.e., causing mass casualties or significant property damage); • inability to eliminate inherent unavoidable risk with due care (i.e., company engaged in the business of manufacturing explosives risk detonation daily); • whether activity is matter of common usage (i.e., tank v. car); • inappropriateness of activity to place where carried on • weigh value of activity to community against its dangerous, unavoidable risks (i.e., Boomer v. Atlantic Cement). (3) Rest 3rd Four Step Approach to all SL Problems: A. Determine if within class of SL animals (see above) or SL activities (see abnormally dangerous tests above).
B. Determine whether the harm suffered was within the inherent risk -‐ e.g. blasting/minks.
C. Causation -‐ Analyze foreseeable harm; intervening events.
1. Contributory Negligence -‐ not a defense
2. Comp Fault -‐ depends on jurisdiction. Some will use to decrease recovery.
3. A/R (assumption of risk) -‐ is a defense. Knowing and voluntary.
4. D’s lack of scienter -‐ Unless SL by statute, most jurisdictions require D’s knowledge of dangerous domestic animal or activity
5. Privilege/Legal Sanction -‐ e.g. governmental immunity or private D doing things for public good Nuisance Overview Public Nuisance Analytical Approach Is it a public nuisance? A. (a) First determine, if common right interfered with? (right to health, safety, peace, right to comfort, right to convenience, right to preserve community morality) Or (b) Is there a violation of a statute or regulation? (c) Permanent long-‐lasting effect B. Did P suffer same kind of harm as rest of public? -‐-‐If so, no liability. Did P suffer different kind of harm? -‐-‐If so, liability for money damages. Private Nuisance Analytical Approach A. Absent a statute, D's interference with P's protected interest must be a: • Intentional, -‐ (An invasion of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor(a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct. If intentional, consent is a defense.) • Negligent, (Did D breach a duty of care by failing to exercise reasonable care?) If so, did P consent/assume the risk/or is contributorily negligent? If so, no liability. Comparative fault applies). • or Strict Liability act (animals or abnormally dangerous -‐ see above) that B. proximately causes (Did D’s nuisance proximately cause a foreseeable harm to P?) C. substantial (Would a reasonable person take offense? Or was P abnormally sensitive?-‐-‐If abnormally sensitive, no liability). D. and unreasonable interference (common law balance of equities results in harm>utility) The Restatement 826 also defines an unreasonable interference as: • a nuisance even if harm < utility, but if permanent damages for serious harm will sufficiently compensate P (pays off P), but still allow D to continue his nuisance conduct (which preserves utility), then plaintiffs should be compensated for the continued nuisance.( So even if P’s harm < D’s utility, ask yourself will permanent damages for serious harm adequately compensate P’s injury (sufficiently pay off P), but still allow D to continue to operate? (If no, no liability) In determining the gravity of the harm from an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important: (a) The extent of the harm involved; (b) the character of the harm involved; (c) the social value that the law attaches to the type of use or enjoyment invaded; (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and (e) the burden on the person harmed of avoiding the harm. In determining the utility of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important: (a) the social value that the law attaches to the primary purpose of the conduct; (b) the suitability of the conduct to the character of the locality; and (c) the impracticability of preventing or avoiding the invasion. E. with P’s use & enjoyment of property (effects condition/use of land, non-‐
trespassory invasions to real property) F. Defenses: (depends on liability theory, see above) If intentional: Consent of P (see Torts I) If negligent: A/R, C/N, C/F (see above negligence defenses) If SL: A/R, not C.N some juris allow C/F (see above SL defenses) G. Injunctive relief – Should Injunction issue and if so, what type of relief should be granted? Consider the following factors: • a. character and extent of the damage inflicted or threatened; b. good faith or intentional misconduct of the def; c. defendants efforts to avoid the harm; d. financial investment of each party; e. relative economic hardship which will result if injunction granted or denied; f. public's interest or social utility in having defendants activity continued g. Who was there first -‐ coming to the nuisance What type of relief is appropriate, permanent or temporary?: Determine if Nuisance Per Se or Nuisance Per Accidens Defamation Overview: A. Defamatory Statement: one which tends to diminish P’s reputation a. Inducement: extrinsic (background facts) are needed to assess defamatory character of statement b. Innuendo: explanation of the inferential, inherent or secondary meaning of words is needed to explains why statement coupled with extrinsic facts injures P’s reputation B. About the Plaintiff: c. Colloquium: where no specific reference to P is made, extrinsic facts are needed to show statement was truly referring to the plaintiff C. False: not substantially true D. Fact/Opinion E. Published F. Damages: Must actual damages be proved or can they be presumed to apply? 1. Libel per se (defamatory on its face) and slander per se (crime of moral turpitude; loathsome disease; business & Profession; unchastity): at CL damages are presumed. 2. Slander required special damages be proven (actual pecuniary harm) before P could get general damages (humiliation, wounded feelings) 3. Libel per quod (not defamatory on its face): courts are split on whether special damages must be proven. 4. U.S. Constitution has impact on damages available (see below) G. State of Mind: If P is public official or public figure = P must show D’s knowledge of falsity or reckless disregard (subjective test: St. Amant) If P is private figure on matter of public concern = negligence at least applies but states can decide to impose actual malice (jurisdictional split). But no presumed and punitive damages unless actual malice is shown (NYT v. Sullivan). If only a negligence showing is made, P can only recover actual damages (Gertz) If P is a private person on a private matter = P can get presumed and punitive damages without showing malice (Dunn & Bradstreet). Invasion of Privacy Overview Intrusion Upon Seclusion One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Appropriation of Name or Likeness One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy. Publicity Given to Private Life One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that : (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. Misrepresentation Overview (subject to change; consult syllabus) Five elements for misrepresentation cause of action. (Intentional, negligent and strict liability causes of action all require the same elements except where indicated.) I. D's misrepresentation of a material fact; II. Requisite state of mind; III. Intent to induce P's reliance; IV. P's justifiable reliance; and V. Damages. I. D's Misrepresentation of a Material Fact A. Material B. Fact (verifiable; objective) C. Misrepresentation 1. Active misrepresentation 2. Failure to disclose 3. Half Truths II. State of Mind A. Intentional Misrepresentation (aka “fraud” aka “deceit” (scienter)) B. Negligent Misrepresentation (carelessness/breach of duty) C. SL form of Misrepresentation (innocence) III. Intent to Induce P's Reliance (Whether a court will decide that D intended to induce P's reliance depends upon the D's state of mind when s/he made the misrepresentation.) A. Intentional: If D intentionally misrepresented, the intended Ps include all in the “expected affected class.” B. Negligent: If D was negligent when s/he made the misrepresentation, Ps limited to the “intended class.” 1. New York Approach 2. Wisconsin “Foreseeability” Approach 3. Restatement §552 Approach C. Strict Liability: If D innocently made a misrepresentation, P class very limited. IV. Justifiable Reliance A. general rule B. fact v. opinion C. statements about law (by non-‐lawyer) D. prediction and intention V. Damages A. Damages required B. Measure of damages: benefit of bargain; out of pocket VI. Defenses: depends on state of mind— A. Intentional: Assumption of Risk B. Negligent: Assumption of Risk; P’s Negligence C. Strict Liability: Assumption of Risk; P’s Negligence (majority) ...
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- Winter '16
- ASSUMPTION OF RISK