Tort Law: A Comprehensive Guide to Intentional Torts, Negligence, Strict Liability, and Defamation

Act – Voluntary act by D. No act, no liability unless D had a duty to act. Intent (RS2 8a) o all consequences which an actor desires to bring about (Brantley, horses jump fence) o OR knows are “substantially certain” to result (Dow Chemical, agent orange) May transfer intent –D is liable if the injury is the direct, natural and probable consequence of the wrongful act (Singer v. Marx – boy throwing rocks) Everyone is liable for intentional torts (elderly, minors, drunks, insane) Causation – Established where D’s conduct is a substantial factor in bringing injury. Damages – P’s injuries; No actual damages except below. Can get nominal, compensatory, and/or punitives (if acted with malice)

Assault Intentionally putting another in imminent apprehension of harmful OR offensive contact o Imminent apprehension = no significant delay and know about attack o Reasonable man standard Transferred intent applies. Mere words do not constitute assault. Battery Intentional AND unpermitted contact which is harmful OR offensive (to reasonable man) Battery = assault which results in harmful contact Transferred intent applies Eggshell skull rule – Even if unpredictable damages happen, D is liable for all damages Intentional Infliction of Emotional Distress RS2 §46 – Extreme and outrageous conduct that either intentionally or recklessly causes severe emotional distress. Liable for physical injuries but don’t need physical harm. Common carriers and innkeepers have a higher standard (Texas & Pacific Railway) Bystander can get if D knew bystander was present and a relative (Star v. Rabello.) Some states allow punitive damages in addition to compensation if emotional distress is severe. NO transferred intent and MUST show actual damages (can be emotional.) See defamation below in relation to First Amendment Defenses for IIMD. (i.e. Falwell) Torts to Property = trespass to chattels, conversion = actual damages needed; trespass to land

Consent – Voluntary and informed words or conduct that shows P assented to tortious act. o Not a defense if activity is illegal. Self-Defense – can use reasonable force to protect oneself against occurring or imminent attack o reasonably proportionate force to situation (Lane – young man hits old man in defense) Defense of Property – reasonable force used to prevent tort against property o no deadly force allowed (Brown – kids steal melons and D shoots kid) Necessity o Public necessity – takings for use; destruction in combat; destruction in emergencies o Private necessity – Complete defense BUT if actual damages, compensate injury.

Fault – an act of negligence = replaces duty analysis; Causation – must show it is the cause in fact + proximate cause of the injury Damages – injury

Failure of Applicable Standard of Care = Fault Reasonable man standard – objective standard – “presumed” to know certain facts of common experience and not create unreasonable risks for other people (including infirm – i.e. blind) o Minors – Must act as a reasonable “child” of his age except when in an “adult activity” o Mentally deficient – must act as a reasonable man; not taken into account o Physically deficient – taken into account o Emergencies – Has a duty to act as a reasonable man under similar emergency situation Professional Standard of Care – i.e. lawyers, doctors Custom of the Industry – BUT, custom may not always be a good std, and although admissible may not be conclusive (Helling – glaucoma); custom can determine medical malpractice Calculus of Risk – (B

punitives if D’s conduct was wanton and willful, reckless or malicious Nonrecoverable damages – Lost interest and attorney’s fees Duty to mitigate – P must take reasonable steps to mitigate (i.e. seek medical treatment) Collateral Source Rule – P’s damages is not reduced by comp received from insurance.

Affirmative Defenses

Contributory Negligence (NC) P is contributorily negligent if his conduct was a contributing, foreseeable cause of injury. COMPLETE BAR to P’s recovery. (Butterfield v. Forrester –P did not see D’s obstruction.) Last Clear Chance Doctrine – P’s contributory negligence is NOT a bar if D had last clear chance to avoid the accident. Comparative Negligence Pure comparative negligence – P’s fault reduces damages based upon percentage of fault o Problem – favors party who has incurred most damages regardless of amt of fault Partial comparative negligence – P may not recover if more than 50% at fault. o Problem – draws an arbitrary line No last clear chance rule Assumption of Risk Express assumption of risk [under K] Implied assumption of risk – P recognized and understood the risk and knowingly and voluntarily encountered the risk o “no-duty” rule applies only to risks which are “common, frequent, and expected.” [Being hit with a baseball in the stadium No Mitigation of Damages Seat Belt Defense – states are split on whether failure to wear a seat belt is aff. def.

Multiple Parties’ Liability

Vicarious Liability D is legally responsible for tortuous conduct of another who is actually at fault. Respondeat Superior – VL in the employment context o Frolic and detour: Negligence of an employee will not be imputed to an employer if the act of employee deviates significantly from course of employment o Not extended to independent contractors or sexual torts Joint Enterprise – People who are doing an activity with a common purpose if each has an equal right of control (teachers on car trip who all had a vote and get into wreck) Family Purpose Doctrine – Owner of a family car is liable for torts committed by family members while driving car Vicariously liable party can seek indemnity (reimbursement) against D and recover damages “Both Ways” Test = If joint enterprise between parties, there would be imputation for vicarious liability as a D and contributory negligence as a P. Joint and Several Liability Common law – If P’s damages are NOT “distinct and separate, each negligent D is liable for entire amount of P’s damages. Now some are moving to several liability. Contribution – Allow Ds who have paid more than their pro-rata share of fault to get partial payment from other Ds. Pro-rata share of fault is based on number of Ds Can hold Multiple D’s liable using following theories: alternative liability, concert in action, enterprise liability, market share, “risk-contribution” theory.

3. Strict Liability

In certain activities, D may be liable for P’s injuries, even when D is not at fault. Prima Facie Case Activity must be within certain categories Causation – Abnormally dangerous activity was cause in fact + proximate cause (see above) Damages – P must either prove personal injury or property damages Categories Animals o Trespassing Livestock – owner strictly liable for foreseeable damages o Domestic Animals – Owner not strictly liable unless animal trespasses OR if owner knows animal is abnormally dangerous Abnormally Dangerous Activity (not product) o RS2 §519 – Subject to liability for harm to another resulting from abnormally dangerous activity although he has exercised utmost care to prevent the harm Strict liability is limited to the kind of harm that makes this activity dangerous (Foster v. Preston Mill – blasting operations frighten mink causing killing.) o RS2 §520 – Balance of Factors Test to Determine Abnormally Dangerous Activity o Major activities this goes to is: blasting; transportation of gas; impoundments; application of poisons; landfills and toxic waste; atomic energy Contributory negligence, comparative negligence, and assumption of risk are defenses to this

4. Derivative Actions and Fatal Injuries

Loss of Consortium –Non-Fatal Personal Injury Cases Actions brought by P who suffered damage because of injury to another person Usually can’t be brought if injured person didn’t have an action themselves Husband and wives get loss of consortium; usually not parents and children Fatal Injuries – Wrongful Death and Survival Actions Lord Campbell’s Act – wrongful death for pecuniary (valued in monetary) loss Survival Statutes – Some states authorize tort action of deceased to be preserved by estate; impute contributory negligence also Benefit to Survivor Statutes – Most states allow a new cause of action for survivors to collect pecuniary loss; impute contributory negligence also

5. Products Liability

Prima Facie Case If a good, recovery is strict liability and/or warranty in K. If mere economic loss, only warranty. Strict Liability o D manufactured product o Product was defective [DO NOT have to show fault] and defect existed at time of sale o Defect caused injury and damages Warranty in K o Mere economic loss = when product damages itself and/or surrounding property (no physical harm) BUT even if have physical injury, can still sue under warranty o Prima Facie Case Defect existed Defect caused injury and damages Covered by express (2-313) or implied (2-314, 2-315) warranty If a service or don’t know who made the protect (DES), recovery is negligence. Manufacturer negligently made defect (Fault) Defect caused injury and damages (overcame privity barrier) Under Strict Liability RS2 §402A – Special Liability of Seller of Product for Physical Harm to User or Consumer 1. If someone sells a defective product which is unreasonable dangerous (based on reasonable man test) to the user, he is subject to liability for user’s physical harm if: a. seller is engaged in business of selling such a product and b. it is expected to and does reach user without substantial change in selling condition 2. Rule stated in subsection (1) applies although a. seller has exercised all possible care and b. user has not bought product from or entered into any contractual relation with the seller. Manufacturing Defects When product departs from intended design even though all possible care was used in design. Use RIL ONLY IF P presents evidence by expert testimony and/or negating other causes. Manufacturer is not liable if P used product in an unforeseeable manner. Design Defects To determine if design defect is unreasonably dangerous (unacceptably unsafe), look at: o Consumer Expectation Test – didn’t perform as safe as ordinary customer would expect o Feasible Alternative Test – Risk/Utility Balancing (IV catheter causes HIV) Unavoidably Unsafe Exception to Strict Liability – RS2 §402 comment k – No strict liability for “products which in present state of human knowledge, are incapable of being made safe for their intended and ordinary use… if it is a useful and desirable product.” (mostly drugs) Warning Defects Warning attached to unreasonably dangerous product may be inadequate (polio vaccine case.) Defenses o Prescription drugs – manufacturer is okay as long as there is a learned intermediary o Open and Obvious Dangers – mfrs don’t have to warn if danger is open and obvious o State of the Art Defense – If mfr does not have reasonable knowledge about a defect, mfr is not liable for failing to warn (Lederle Labs – Declomycin discolors teeth) o Preemption by a federal agency (i.e. FAA) o Compliance with regulations o P’s behavior – contributory negligence

6. Defamation

Common Law Development -[see also Common Law Defamation Chart] Only applies to private figures in private matters Prima Facie Case 1. False statement 2. Published to third parties (must have intent to publish) 3. Defamatory (injurious to reputation) 4. Defamatory Statement Caused Injury/Damages

Pleading a Defamation Case Inducement – allege facts necessary to show defamatory statements Colloquium – allege facts necessary to show inducement’s statements were about him Innuendo – explain why defamatory statements ARE defamatory Slander Per Se – assume that the statement is defamatory and causes damages (so must prove 1,2,5) Imputing serious morally reprehensible criminal conduct Allegations of loathsome or infectious disease Injures in respect to office or profession Lack of chastity to a woman Slander Per Quod – must prove all Libel – like slander per se Must show that P is identifiable from publication and publication is defamatory A picture or film can be actionable as libel (Burton v. Crowell – cigarette jockey) Defenses Truth Privilege (absolute and qualified) Poor General Reputation

Constitutional Developments -[see also Constitutional Defamation Chart]

Only apply if in a matter of public interest, or public officials, or public figures. Public Officials/Public Figures Public critics in public capacity not liable unless stmt made with actual malice (Barr v. Matteo) Citizen critics of public figures in official capacity not liable unless actual malice. (NY Times) o People can become involuntary public figures. (Time, Inc. v. Firestone) Actual malice = Knowledge of falsity OR reckless indifference to truth or falsity Burden of Proof = Clear and Convincing Evidence Private Individuals in Public Matters Can be liable if stmt made with some level of fault (either actual malice or negligence) AND there is an actual injury/damages shown. (Gertz v. Welch) [no more strict liability] To get punitive or presumed damages MUST show actual malice. Private Individuals in Private Matters – Go back to common law defamation (Greenmoss Builders)

7. IIMD in Relation to Defamation

See above for IIMD generally. Many IIMD cases involve defamatory statements made to P and are either accompanied by defamation OR are made in IIMD because defamation requires higher standard. First Amendment Defenses such as freedom of speech and freedom of religion can block an IIMD action. (i.e. Paul v. Watchtower Bible – P shunned by Jehovah Witness and ct held allowed because of freedom of religion; Hustler v. Falwell – No actual malice b/c a joke.)

8. Privacy

False Light Cases Publicity which places P in a false light in the public eye Prima Facie Case o Stmts are false and personally embarrassing (to reasonable man) but not defamatory o Most states require D made it with “actual malice” o Damages Punitive damages allowed if actual malice met Compensatory – most require actual malice; can get IIMD Intrusion Upon P’s Seclusion or Solitude or Into his Private Affairs Intrusion into a private place, conversation or matter that will highly offend reasonable man Prima Facie Case o No publication necessary o Must have intent to intrude o D’s conduct is cause in fact and proximate cause of invasion (Consent is defense) o Damages = pure emotional distress and mental anguish are sufficient P must show D’s conduct was truly intrusive (public spaces are fair game) Public Disclosure of Embarassing Private Facts Prima Facie Case o Highly offensive public disclosure (reasonable man) of private facts o No legitimate public interest in publication (not “newsworthy”) o Fault in making the disclosure o Causation Truthful publication is constitutionally protected if o it is newsworthy (serves public interest) and o does not reveal facts so offensive as to shock community’s notions of decency. To determine if something is newsworthy, consider social value of the facts published; depth of article’s intrusion into ostensibly private affairs; extent to which party voluntarily acceded to a position of public notoriety Appropriation for D’s Advantage of P’s Name or Likeness Illegal to use person’s name or picture for trade or advertising purpose without consent Newsworthiness is a defense to commercial appropriation Damages o for private citizens – emotional harm o for public citizens – for purposes of trade – endorsement value (interference with right of publicity) for advertising – endorsement value + punitives if malicious