TORTS
A.BAR STRATEGY FOR TORTS
1.GENERAL:
a.One of the 2 most heavily tested on MS > 40 Qs.
b.Also appear on NY exam paired up w/CPLR or other subjects.
(1)Perhaps even a short answer Q on torts.
c.Maj. law on short-answer Qs.
d.Skim over equity remedies outline.
2.4 STEP APPROACH TO MS MC Qs:
a.STEP 1: Identify the P, D and tort theory sued upon (intentional tort, neg., or SL for a defective product or ultra-hazardous activity).
(1)If Call of Q does NOT state the theory of tort liab., DO NOT READ THE ANSWER CHOICES (will waste time) > read facts to get theory.
(a)USU. A NEG. LAWSUIT
(b)WHEN FP could give rise to EITHER BATTERY OR NEG., ASSUME BATTERY CLAIM.
(2)If intentional tort in call, eliminate all answers containing "FORESEEABLE."
(3)If infliction of emotional distress, but no indic. in Call as to whether INTENTIONAL or NEG., correct answer usu. "No c of a exists."
(4)Directed Verdict Qs are almost always tort Qs:
(a)Analysis:
i)Determ. the tort.
ii)Recall basic elements of the tort; AND
iii)Check facts to see if evid. presented on EACH element.
(b)USUALLY: D's DV MOTION IS GRANTED WHILE P's IS NOT. GRANTED
b.STEP 2: Recall the basic rules (elements) that apply to that tort theory.
(1)If intent. tort: ie. Battery is...
(2)If neg.: the 4 elements (duty, breach, causation, damages) and the approp. std. (reason. prud. in sim. circums.; or special std. b/c of nature of the parties: child, landowner, etc.)
(3)If SL: review elements and test of whether the prod. is in an unreason. defective cond. when D sold it.
c.STEP 3: Cross out any answer choices irrelevant to the lawsuit on that partic. tort theory or the parties litigating.
(1)ALWAYS WRONG ANSWER: "D not liab. b/c someone else is liab. or had the responsib., or something else caused the harm" (Could have JOINT and SEVERAL LIAB.) > D must show element of tort is missing, or must have defense.
d.STEP 4: Guidelines to ID the right answer:
(1)If suit on INTENTIONAL TORT, it will use lang. of the basic element(s) of that tort, if estab. or not in FP.
(2)If suit on NEG., it will use lang. relating to the correct std. of care.
(3)If suit on SL FOR DEFECTIVE PROD., it will contain lang. relating to 1 of 2 issues:
(a)Whether D is an approp. D for that kind of claim; OR
(b)"Unreason. dangerous or defective nature of prod. when D sold it."
3.HOT TOPICS IN TORTS ON MS EXAM:
a.6 INTENTIONAL TORTS:
(1)Battery
(2)Assault
(3)False Imprisonment
(4)Trespass to Chattels and Conversion
(5)Trespass to Land
(6)Intentional Infliction of Emotional Duress (v. Neg. Infliction...)
b.SPECIAL STANDARDS OF CARE IN NEG.:
(1)Children
(2)Landowner for injuries caused by cond. on land: (4 Stds.)
(a)Unknown trespasser; known trespasser; invitee; licensee.
(3)Professionals
(4)Guests and Drivers in Cars
(5)Common Carrier and Passengers
(6)Violation of Stat.
c.ELEMENTS OF SL AND TESTS USED BY CT.
d.ELEMENTS OF DEFAMATION
(1)Add'l Elements when P is a Pub. Figure, or it involves a Matter of Public Interest, or Both.
e.JOINT AND SEVERAL LIAB.
(1)Comparative Neg. (Pure and Modified) and Comparative Contrib.
I.INTENTIONAL TORTS (8-10 Qs)
A.GENERAL:
1.THE HYPERSENSITIVITY OF A P IS NEVER TAKEN INTO ACCT. IN DETERM. WHETHER THAT P CAN RECOVER FOR AN INTENTIONAL TORT.
a.Whenever must make an evaluative distinction, assume you are dealing w/person of ord. sensibility.
2.EVERY D YOU ENCOUNTER ON BAR WILL BE LIAB. FOR THEIR INTENTIONAL TORTS.
a.NO INCAPACITY DEFENSE (ie. young child can commit an intentional tort; mentally incompetent, drunk or retarded Ds are liab. for intentional torts.
B.BATTERY
1.3 ELEMENTS: P MUST SHOW:
a.INTENT OF D TO DO ACT;
(1)D intended the act, BUT INTENT TO HARM NOT REQD.
(2)Capacity to understand that act is wrong > IRRELEVANT.
b.A HARMFUL OR OFFENSIVE CONTACT; AND
(1)Tested on offensive contact > analyzing offensiveness contact
(2)TEST: A contact is offensive if it is or would be UNPERMITTED by a person of ord. or reason. sensibility.
(a)ie. Classmate taps you on shoulder to ask for time > CANNOT SUE FOR BATTERY B/C NORMAL AND CUSTOMARY WAY OF GETTING YOUR ATTENTION (PERMITTED BY REASON. PERSON).
(b)ie. Football player enters library and sits next to woman. She is studying and he wants to talk to her. He tells her he likes her and strokes her hari > ACTIONABLE BATTERY.
c.CONTACT W/THE P's PERSON. (Bar loves this.)
(1)CONTACT SUFF. IF W/ANY OBJECT OR ANYTHING CONNECTED W/THE P.
(a)ie. D grabs P's plate away in restaurant and says will not serve him > TOUCHING PLATE IS SUFF. FOR "CONTACT W/PERSON."
(b)ie. Kicking someone's dog on person's leash; Woman riding horse, and guy slaps her horse's butt; Teenagers jump on the hood of your car while you're in it > BATTERY
(2)DOES NOT REQUIRE IMMEDIACY IN THE SEQUENCE OF THE EVENTS > CAN BE DELAYED. ie. poisoning your food and eat it one hr. later.
C.ASSAULT
1.2 ELEMENTS: (P in APPREHENSION of an IMMEDIATE BATTERY)
a.D MUST PLACE P IN APPREHENSION... (3 FEATURES)
(1)Must be REASON. APPREHENSION (test according to person of ord. or reason. sensibility).
(a)ie. Unreason P: Speaker reaches for hankie to wipe sweat and someone in audience screams he is going for gun > NOT ASSAULT.
(2)APPREHENSION = AWARENESS THAT OFFENSIVE TOUCHING IS COMING: akin to "I could get touched soon" > do NOT NEED WORRY OR FEAR THAT ONE ULTIMATELY CANNOT DEFEND ONESELF.
(a)FP: Small person threatening huge person (WRONG ANSWER: SECURE, CALM FEELING THAT YOU CAN DEFEND DOES NOT DEFEAT ASSAULT).
(3)ALWAYS ANALYZE FROM PT. OF VIEW OF P: IF P OF WOULD REASON. APPREHEND A TOUCHING, IRRELEVANT THAT D COULD NOT COMPLETE (UNLOADED GUN PROB.): D acting in way that suggests imminent touching but D is objectively incapable of carrying it out >
b.OF AN IMMEDIATE BATTERY.
(1)BAR FPs: Ds who engage in some sort of speech.
(a)WORDS ALONE DO NOT HAVE THE REQUISITE IMMEDIACY > VERBAL THREAT BY ITSELF IS NEVER AN ASSAULT.
i)ie. "In 30 seconds I will punch you" > not enough.
(b)NEED OVERT CONDUCT -- ie. waving fist.
(c)WORDS CAN NEGATE CONDUCT AND DESTROY P's C OF A.
i)SUBJUNCTIVE WORDS: ie. "If you weren't my best friend I'd beat you up." > subjunctive use > NO APPREHENSION OF IMMEDIATE CONDUCT.
ii)FUTURE TENSE WORDS:
a)ie. "Just wait until noon when I beat the shit out of you" > not assault b/c harm threatened is future, NOT IMMEDIATE.
D.FALSE IMPRISONMENT
1.2 ELEMENTS:
a.ACT OF RESTRAINT BY D; AND
(1)THREATS ARE GOOD ENOUGH TO CONSTITUTE RESTRAINT.
(a)Do not need physical act (ie. locking you in closet, or pointing gun at you.)
(2)EVEN AN OMISSION CAN BE AN ACT OF RESTRAINT IF THERE WAS SOME DUTY TO ACT AFFIRMATIVELY.
(a)ie. Jailor who refuses to release prisoner on day the prison term expires.
(b)ie. On bus, pull chord to get off, and bus driver does not let you off.
(3)NO MINIMUM PERIOD OF CONFINEMENT REQT. (ie. 5 minutes, 5 yrs.)
(4)P MUST KNOW OF THE CONFINEMENT AT THE TIME.
(a)ie. X nails doors and windows shut on Y's house. Two hrs. later, X takes it all down. Y had no clue > NO CLAIM B/C NO AWARENESS.
b.CONFINEMENT IN A BOUNDED AREA.
(1)FREEDOM OF MVT. MUST BE LTD. IN ALL DIRECTIONS (360 DEGREES).
(a)If only hampered in one direction > NO FALSE IMPRISONMENT.
i)ie. barricade blocking forward direction on street > can go around the block.
(b)MUST BE IN BOUNDED AREA.
(2)EXCLUDING SOMEONE FROM A PLACE IS NOT FALSE IMPRISONMENT.
i)ie. Bouncer does not let X in club > being confined to the rest of the world is NOT FI.
(a)P IS NOT CONSIDERED TO BE CONFINED IN BOUNDED AREA IF THERE IS A REASON. MEANS OF ESCAPE ABOUT WHICH P IS AWARE.
i)FP:X in house. Enter basement. Y locks basement door. X does not know where light is, but sees an abandoned sewer pipe big enough to fit through and sees speck of daylight at end. Then see hundreds of rats in pipe. Falsely imprisoned? YES > NOT A REASON. MEANS OF ESCAPE.
ii)FP:X in mansion. Person X wants to see not there. Butler asks X to wait in library. Butler locks him in library. 3rd bookcase from left is fake and has secret, well-lit staircase out to street > DOES NOT KNOW ABOUT SECRET PASSAGEWAY > FI.
2.NY LAW: (NY essay)
a.SHOPKEEPER'S PRIV.: A MERCHANT MAY DETAIN A CUSTOMER ON SUSPICION OF SHOPLIFTING W/O INCURRING LIAB. FOR FI.
(1)REQT.: Reason. suspicion of shoplifiting AND detention carried out in reason. way.
(2)ALSO APPLIES TO LIBRARIES.
E.INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
1.3 ELEMENTS:
a.INTENTIONAL, OUTRAGEOUS CONDUCT BY D; AND
(1)DEF.:CONDUCT THAT EXCEEDS ALL BOUNDS OF DECENCY TOLERATED IN A CIVILIZED SOCIETY.
(a)MERE VERBAL INSULT IS NEVER OUTRAGEOUS.
(2)4 HALLMARKS OF OUTRAGEOUSNESS:
(a)TO THE EXTENT THAT THE CONDUCT HAPPENS IN PUBLIC (not private), makes it MORE OUTRAGEOUS.
i)ie. ACME collection agency knocks on door. You let him in. He yells at you and harangues you on your debts > AWHETHER OUTRAGEOUS IS FOR A JURY.
a)BUT if this happens on your porch in public, easier for P to win.
(b)THE CONDUCT IS CONTINUOUS (REPETITIVE, HAPPENS OVER AND OVER AGAIN).
i)ie. Phone rings at 3AM. VISA tells you to pay your bill > for jury.
ii)ie. If done every morning > OUTRAGEOUS.
(c)IF D IS A COMMON CARRIER OR AN INNKEEPER, EASIER TO FIND CONDUCT OUTRAGEOUS.
i)ie. people who run service indus. (hotels, airlines, etc.). Call down for room service in hotel. They wheel in food cart. Take off metal cover and find rat w/apple in mouse > OUTRAGEOUS.
(d)P IS A MEMBER OF A FRAGILE CLASS > CONDUCT DIRECTED TOWARD THEM MORE LIKELY TO BE OUTRAGEOUS. (3 CLASSES)
i)IF P IS A CHILD > conduct directed to child could be more outrageous than if directed toward adult.
ii)IF P IS ELDERLY
iii)IF PREGNANT WOMAN.
(3)KNOWING EXPLOITATION OF P'S SENSITIVITY IS SUFF.
(a)FP: X buys rubber snake and puts it on Y's chair while Y out to lunch. X hides in office to see. Y has HUGE phobia about snakes. When Y sees it, Y has a massive heartache. Y sues > NOT OUTRAGEOUS ACT B/C IT DID NOT EXCEED ALL BOUNDS OF DECENCY. NOT CONTINUOUS. Y NOT A MEMBER OF FRAGILE CLASS. DOES NOT WORK UNLESS X KNEW ABOUT Y'S SENSITIVITY AND DELIBERATELY EXPLOITED IT.
b.INTENDED TO CAUSE EMOTIONAL DISTRESS OR RECKLESS AS TO THAT RESULT; AND
c.SEVERE EMOTIONAL DISTRESS. (Reasonably substantial distress.)
2.NY LAW:
a.Sep. c of a caused to family members through the INTENTIONAL MISHANDLING OF A CORPSE.
3.COMPARED TO NEG. INFLICT. OF EMOTIONAL DISTRESS (not an intentional tort):
a.RULE: P must estab. some PHYSICAL HARM OR DAMAGE IN ADDITION TO EMOTIONAL DISTRESS. (lack of sleep is NOT a phys. harm)
F.TRESPASS TO LAND
1.2 ELEMENTS
a.ACT OF PHYSICAL INVASION; AND
(1)Walking on someone's land.
(2)ONLY INTENT REQD. IS THAT D DELIBERATELY WENT TO PLACE ON PURPOSE.
(a)NO REQT. THAT D KNOWS THAT HE IS ON SOMEONE ELSE'S LAND.
i)ie. If walk through pub. park and make turn into Black Acre w/o knowing > trespass.
ii)UNINTENTIONAL, NONVOLUN. ACTS (epileptic seizure, sleepwalking, someone throws you on someone else's land > NOT TRESPASS).
(3)ENTERING PRIVATE PROP. THROUGH ANY CONVEYANCE (driving, boating).
(a)Also phys. invasion IF PROPEL OBJECTS ONTO SOMEONE ELSE'S PRIVATE LAND. (ie. throw rock; spray water from hose, etc.)
(4)NONPHYSICAL INVASIONS > NO TRESPASS
(a)NOISE, BRIGHT LIGHTS, ODORS, SMOKE.
i)FP: 2 Lots: one lot has boiled cabbage restaurant (terrible smell). Neighbor sues > LOSES B/C ODORS ARE NOT PHYSICAL INVASION.
b.LAND.
(1)VERTICAL COLUMN OF REASON. USE SPACE: INCLUDES SURFACE, AIR ABOVE, AND SOIL BELOW TO THAT DISTANCE WHERE THE OWNER CAN MAKE REASON. USE OF THE SPACE.
(a)Column does not extend infinitely.
i)ie. Commercial plane at 30,000 ft. above your prop. is not trespass.
ii)ie. Kid throws ball across neigbor's yard and lands in street > phys. invasion and land (column of air a few feet above ground) > TRESPASS.
(b)BAR TIP: TESTED ON TECHNICAL ELMENTS, NOT PRAGMATISM.
2.DEFENSE: If prior requests for return of wrongfully taken or held prop. fail:
a.If your personal prop. is wrongfully on the land of another who is a wrongdoer, you may enter that person's land and take your prop. back in ANY REASON. WAY AT A REASON. TIME.
G.TRESPASS TO CHATTELS (minor damage) AND CONVERSION (extrem/total damage)
1.GENERAL:
a.THEY ARE 2 ALTERNATIVE INTENTIONAL TORTS INVOLVING INJURY TO PERSONAL PROP.
(1)"INJURY":
(a)PHYSICAL DAMAGE TO THE OBJECT.
(b)DENYING OWNER OF POSS. OF THE OBJECT.
b.These two torts are the CIVIL REMEDY FOR THEFT AND VANDALISM
c.TRESPASS TO CHATTEL:
(1)DEF.: An intentional act by D that interferes w/personal prop. of another.
(2)DEFENSES FOR D: P's CONSENT OR PERMISSION.
(3)IF AMT. OF DAMAGE IS MINOR > TRESPASS TO CHATTEL.
(a)ie. Hotwire car, joyride for an hour, and return; scratch car w/key.
d.CONVERSION:
(1)DEF.: Same as w/trespass to chattel.
(2)IF AMT. OF DAMAGE IS SUBSTANTIAL (GREATER THAN 50%) OR TOTAL > CONVERSION.
(a)ie. Hotwire car and steal it permanently; steal car and crush in junkyard into cube of metal > conversion.
(3)EFFECT: LAW TREATS CONVERSION AS A FORCED SALE > D MUST PAY FMV OF THE OBJECT PLUS INTEREST (as if D bought the chattel).
(a)FMV calculated at the time of conversion.
e.AMT. OF HARM FROM OWNER'S PERSPECTIVE, NOT PROP.:
i)ie. Dog has ear ache. Owner takes to vet. Vet. castrated the dog > MERELY A TRESPASS TO CHATTEL.
H.NY CAUSE OF ACTION: PRIMA FACIE TORT
1.Put it in essay Q as a back-up tort in intentional tort area.
2.3 ELEMENTS: (bus. or comm. context)
a.INTENT TO CAUSE PECUNIARY HARM;
(1)SPITEFUL COMM. INJURY.
b.RESULTING HARM; AND
c.LACK OF JUSTIFICATION.
II.AFFIRMATIVE DEFENSES TO INTENTIONAL TORTS
A.CONSENT
1.2 PART ANALYSIS:
a.WHEN IS CONSENT DEFENSE AVAIL. IN A CASE?
(1)P MUST HAVE LEGAL CAPACITY to give consent to someone else to invade their interest.
(a)ie. a drunk person cannot consent to battery; mentally retarded cannot consent to false imprisonment; child cannot consent to trespass.
(2)2 KINDS OF CONSENT:
(a)EXPRESS: Words in quotation marks granting D thr rt. to do something. (not on Bar b/c too easy)
i)ie. "Go ahead! Hit me!"
ii)FRAUD, DURESS, OR MISTAKE VOIDS EXPRESS CONSENT.
a)ie. X picks up Y in bar. Go home. X asks Y if want to have sexual intercourse. Y says "yes, let's have sex." Exchange phone #s in morning. 2 wks. later, Y develops rash. Y sues for battery. X claims Y consented. Y says that at time of consent, did not know you had disease > Y WINS B/C OF MISTAKE OR FRAUD.
(b)IMPLIED: 2 SITUATIONS
i)CUSTOM AND USAGE: B/c P has gone to a particular place or engages in activity > it is implied consent.
a)ie. X and Y decide to play football. X tackles Y. Y sues for battery. > X WINS B/X IMPLIED CONSENT.
b)ie. Riding subway and costantly pushed by crowd further into car > NOT BATTERY B/C IMPLIED CONSENT IN DOING ACTIVITY (RIDING SUBWAY).
ii)BASED ON REASON. INTERPRETATION BY D OF P's PARTICULAR CONDUCT.
a)P behaves in way that leads D to reason. belief that P has consented. ie. P makes great, romantic dinner for X. Y closes eyes and inclines head on couch. X kisses Y. Y sues for battery > X WINS B/C Y's BEHAVIOR REASON. INTERPRETED TO BE CONSENT.
b.IF YES, DID D STAY W/I THE SCOPE OF ANY CONSENT GIVEN BY P?
(1)EXCEEDING SCOPE OF CONSENT:
(a)FP: Same as above. But if X interprets Y's act as invitation for sex and has sex. > BATTERY > D EXCEEDED SCOPE OF CONSENT.
B.SELF-DEFENSE, DEFENSE OF OTHERS, & DEFENSE OF PROP.
1.2 STEP ANALYSIS:
a.CAN D SUCCESSFULLY RAISE THE DEFENSE ON THESE FACTS?
b.IF AVAIL., HAS D EXCEEDED SCOPE OF PERMISSIBLE FORCE?
2.1ST STEP: CAN D RAISE THE DEFENSE? AVAILABILITY OF DEFENSES DEPENDS ON: (2 FACTORS)
a.TIMING: NO REVENGE ALLOWED.
(1)Can only successfully raise defense if some invasion of your interest is now being committed or such invasion is imminent.
(2)If tort is over, no rt. to use defense of self or prop.
(a)ie. X spits in Y's face. X cannot belive. Chases Y down and beats Y up > NO SELF-DEFENSE B/C TIMING OFF; TORT WAS OVER.
b.ACCURACY: WHETHER D CAN SUCCESSFULLY KEEP THE DEFENSE IF THE D MISINTERPRETS THE SITUATION
(1)SELF-DEFENSE:
(a)Need only a reason. belief that you are in jeopardy.
i)ie. Sent out to review documents in a case in a city never been to. In restaurant eating. Suddenly look up and see a cook holding huge knife, coming directly toward you. No one else in restaurant. So you pull out gun and shoot him. Dying words are: "I was going to carve the roast behind you." Widow sues for battery. You claim self-D > DEPENDS ON IF JURY BLEIVES IT WAS REASON.
(2)FOR DEFENSE OF 3RD PERSONS: (MS AND MAJ)
(a)If misinterpret the situation, you will lose your defense > ACT AT YOUR OWN PERIL.
(b)NY RULE: Allows def. of others on REASONABLE BELIEF.
i)Better to encourage people to intervene.
(3)DEFENSE OF PROP.: (MS AND NY RULE)
(a)Reason. belief is suff.
i)ie. Getting luggage at airport. Right at opening of luggage return. Someone grabs you bag. You grab him and demand it back. Bag does have his name on you. He sues for battery > YOU WIN B/C REASONABLE MISTAKE IS GOOD DEFENSE (BAGS LOOKED ALIKE).
3.2ND STEP: SCOPE OF FORCE? FORCE ALLOWABLE MUST BE PROPORTIONAL OR NEC. UNDER THE CIRCUMS.
a.FP: X walking down street, getting ready to spit on Y. Y gets ready to defend. Y pulls out gun and shoots X > EXCESSIVE FORCE.
(1)But can shove X away.
b.DEADLY FORCE OKAY IF DEADLY FORCE THREATENED AGAINST YOU OR ANOTHER (LIFE THREATENING SITUATION).
c.NY RULE:
(1)DUTY TO RETREAT before using deadly force UNLESS in your own home.
(a)ie. If in bar and can duck out the door, duck out the door.
(b)But if at home and roommate attacks w/knife, can blow him away.
4.3 RULES (MAJ. AND NY) ABOUT PROP.
a.BEFORE CAN RESORT TO ANY FORCE TO PROTECT PROP., MUST MAKE ORAL REQUEST THAT D DESIST.
b.WHEN DO USE FORCE, CANNOT USE DEADLY FORCE (no matter how valuable the prop. is)
c.CANNOT PROTECT PROP. W/DEADLY TRAPS (ie. No spring guns).
C.NECESSITY
1.DEFENSE ONLY TO A PROP. TORT.
a.TRESPASS TO LAND OR CHATTEL, OR CONVERSION
2.2 KINDS:
a.PUBLIC
(1)DEF.: When you invade someone's prop. interests in an emergency situation to protect the community as a whole or some sig. group of people.
(2)EFFECT: Complete and absolute total defense (need not pay anything).
(a)ie. Group of kids w/collie coming toward you on street. As they get closer, you realize that the kids are crying and screaming and running as fast as they can, and the dog is snarling, chasing them, and frothing at the mouth. You pull out gun and kill dog. Owner of dog sues for conversion > PUBLIC NECESSITY DEFENSE WINS.
b.PRIVATE
(1)DEF.: When you invade someone's prop. intrest in an emergency situation to preserve an interest of your own (your personal safety or you own prop.)
(2)EFFECT: D not liab. for punitive damages, but is liab. for any actual harm done > if no harm done, then complete defense.
(a)ie. D flying plane. Plane in trouble. To save himself, land in field and damage crop. Farmer sues for trespass to land > PILOT MUST STILL PAY DAMAGE BUT NO PUNITIVE DAMAGES.
(b)ie. D is walking in state park. Encounters a bear. Bear starts to chase D. D runs and crosses into Blackacre w/o knowing. Runs into toolshed and closes door. Bear leaves. D waits and sees coast clear and drives home. Owner saw whole thing and sues D for trespass > D HAS GOOD PRIVATE NECESSITY DEFENSE AND DID NO DAMAGE > NO RECOVERY FOR P.