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have results for sum and substance torts
Nuisance 11 results (showing 5 best matches)
- Let's now look for a little bit at this concept of private nuisance and that's more likely to be tested in torts. And what private nuisance requires is a substantial and unreasonable interference with the plaintiff's use and enjoyment of his land. An unreasonable and substantial interference with the plaintiff's use and enjoyment of his land. And because it deals with the land, it deals with real property that's why you could discuss this as well in your property class. And think about this tort along with this trespass to land idea that you talked about a while ago. But trespass to land requires entry of the land, something tangible entering the land. The good news is it's very easy for the plaintiff to prove, but you need some actual...something with some tangibility, some substance entering the land. Nuisance arises when we're dealing with bad smells or loud noises, and the like. And for nuisance, the plaintiff is anyone who has a possessory interest in the land. So it could be a...
- Let's now turn our attention to a different tort. This is a tort called nuisance, ah, nuisance, kind of like this whole law school thing. The interesting issue with nuisance is sometimes it's covered in property and sometimes it's covered in torts, and sometimes it's simply not covered at all. But it's covered by the restatement of torts. So let's spend a little bit of time talking about this concept of the tort of nuisance. There's some confusion about nuisance because unlike other situations where we've talked about, for example, negligence that conveys unreasonable conduct or battery which conveys harmful or offensive contact with a person. Nuisance really describes a kind of injury, a kind of damage that the plaintiff is asserting that they've suffered. So it's a little bit different. And so, one of the questions becomes, well, how does one cause a nuisance? What is the mental state? Well, you can bring about a nuisance through intentional wrongdoing or through negligent conduct...
- So most of these nuisance cases are really intentional tort cases. The key is you need a substantial and unreasonable interference. And therefore, we don't allow insignificant claims to proceed. So let's assume every day at noon, a factory on the other side of the town cleans its machines and for about 15 seconds, there is an unpleasant smell that walks through the air over to the plaintiff's house. All she has to do is close her window for 15 seconds and it dissipates, and it disappears. And she sues for nuisance. Court there is very unlikely to find that to be a nuisance because it's not a substantial interference. It's just too insignificant and we also use an objective standard here. So this substantial interference has to be an unreasonable interference meaning, that a reasonable person under an objective standard would dislike what's going on, would view this to be a nuisance.
- Where there is a nuisance, where... And again it's typically intentional, but not always. But where there's this interference with the plaintiff's use and enjoyment of the land, most typically what happens is that either the defendant has to pay damages for that nuisance like bad smells, loud noises, or in some cases there's an equitable remedy of injunction. And many of you will look at a case called Boomer, if you haven't already, and in Boomer, the court finds a nuisance. But then the question is, well, what should the remedy be? The plaintiff there says, "Well, shut down the cement factory. Just shut it down." And the court says, "You know what? An injunction is an equitable remedy. And so, we have to think about what's fair. We have to balance the interest and the impact on this town of shutting down one of the major employers is too negative. So we're not gonna permit an injunction in this context." But you wanna think a little bit about the possibility of injunctive relief...
- There's two kinds of nuisance, public nuisance and private nuisance. Public nuisance is not covered a great deal in most torts classes, but a public nuisance arises when the defendant interferes with the plaintiff's right. And the right is basically an interference with some sort of public rights, some sort of harm to the public at large. Usually, for public nuisance, we're talking about things like interference with the health, safety, or morality of a community. And because it's a public injury as opposed to a private injury which we'll talk about in a moment, because we're talking generally here about some sort of public harm for public nuisance, the person who brings a public nuisance claim is a government actor such as a county attorney or state's attorney, or a district attorney representing the public at large. And when those government representatives bring an action against the defendant for public nuisance for harming the public's morality, like opening adult bookstores...
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Intentional Torts 2 results
- So, let's start by looking at intentional torts. Most tort classes focus first on intentional torts, but not all. Some start with negligence, but most courses start with intentional torts and that's what we'll do. And there's a variety of intentional torts. We're gonna focus first on intentional torts to persons, the torts of battery, assault, false imprisonment, and intentional infliction of emotional distress. The first thing to keep in mind is that when we look at any tort, regardless of whether it's an intentional tort or negligence or any other tort, we wanna think in terms of elements. What are the elements of the tort? Or another way to think about elements would be to ask well if the plaintiff, the injured party wants to recover for the injuries suffered based on this tort theory, what is it that the plaintiff has to prove? Well, one thing we wanna start with is the idea that the plaintiff has to prove every element of what we call the prima facie case for that tort.
- What are the elements that the plaintiff has to prove? The plaintiff has to prove every element of the prima facie case. And the plaintiff has to do that by a preponderance of the evidence, that's the burden of proof. A preponderance of the evidence which is more likely than not. Sometimes lawyers will say, imagine a scale. And if on that scale there were two piles of sand on each side of the scale, if the plaintiff side of the scale has one more grain of sand than the defendants, the plaintiff has established that element by a preponderance of the evidence more than 50%, more likely than not. So, the plaintiff has to prove each element by a preponderance of the evidence. And for each tort, we wanna think about what those elements are. So, the first intentional tort we're gonna look at is one of the oldest intentional torts. It was born I think in like the 1100s or something like that. It's the tort of battery.
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Introduction 34 results (showing 5 best matches)
- We see from this case, and we will see some more in a moment, that children can be liable for their own tortious conduct but only if there's fault. And so our focus now shifts from these general principles to fault-based liability in tort. First, we're gonna look at intentional wrongdoing, intentional torts, and defenses to intentional torts. Then, we're gonna look at the most important tort of all, the tort of negligence.
- So when we approach tort law, we wanna think about, "Well, what are the protectable interests?" And what's so thrilling at least to me about tort law is it's always evolving, it's always changing. What was a basis for tort liability in the past might not be a basis for tort liability in the present or it might not be a basis for tort liability in the future even though it currently is a basis for tort liability.
- So we're trying to come out with the right balance. And frankly, people have very different views often based on sort of maybe a political calculus of what is the proper balance in the tort system. There's much talk these days about tort reform and changing the tort system. But one person's tort reform is another person's tort deform. So coming out with the proper balance is a struggle.
- Greetings and welcome. My name is Larry Levine and I have the great good fortune to get to talk to you about my very favorite topic in the world, the topic of torts. And I know, at some level, that sounds a little pitiful but it's true. Torts is my life. I have been teaching tort law for over three decades. I have a torts case book, a torts treatise. And I absolutely love this topic, and I hope that you will, too. If you don't come to love it, I hope you'll at least come to tolerate it.
- Before we get into the specific torts, let's think a little bit more broadly about the tort system itself. What are we trying to accomplish? What are the goals of the tort system? And there are several and you'll see that they're often in conflict. So what are the goals? And often, the key goal of the tort system is to provide compensation to an injured person. So maybe the number one goal is compensation.
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Misrepresentation 26 results (showing 5 best matches)
- Okay, now we're going to begin looking at some specific Torts. And we're going to start by looking at some economic Torts. The most important and the most commonly tested and taught economic Tort is the Tort of misrepresentation also known as fraud or deceit. The Tort of misrepresentation has four essential elements and I'm gonna lay them out for you and then we'll talk about each one. These are first, a misrepresentation, second, fault, third, plaintiff's justified reliance, and fourth, damage. Misrepresentation, fault, plaintiff's justified reliance, and damage.
- Whether this is good judgment or not, let's say you are thinking about hiring me to be your lawyer. And I know the adage, "Those who can't do teach." And then I once had a class who say, "And those who can't teach teach Torts." Isn't that sweet? At any rate, you're thinking of hiring me to be your lawyer and you're talking to another lawyer about this. And the other lawyer who's hoping for your business tells you, knowing it's a lie, that I'm no longer practicing law, that I've quit practicing law. And so you hire the other lawyer instead. You hire her to be your lawyer. Well, I've been harmed, right? I lost you as a client. What happens if I sue for misrepresentation? Because there is this false statement of material fact saying I'm not practicing law any longer. Well, the reason that I cannot recover for misrepresentation, I may have other Tort. There may be other Tort claims that I can bring. But the reason I can't bring a misrepresentation action here is because I was not...
- Okay, now let's look at the next element of misrepresentation, the element of fault. We've seen that there are different kinds of fault in Tort Law. Intentional wrongdoing, recklessness or negligence. And so one of the questions is, what kind of fault will satisfy a claim for misrepresentation? Well, all jurisdictions agree that if the person who is speaking, the defendant, knows the fact that they asserted is false then they have intent and they're liable for misrepresentation. So this is really intent and so an intentional misrepresentation. When the person knows the information is false, they intend to have people rely on it, that assuming the other elements are proven, they will be liable for the Tort of misrepresentation.
- But the mental state here for misrepresentation is broader than just intent. And there's a special law word called scienter or scienter, or scienter. However you wanna say it but let me spell it, S-C-I-E-N-T-E-R, S-C-I-E-N-T-E-R. And this is a term of art. This is a specific word that applies to the Tort of misrepresentation or fraud or deceit. And it provides that the mental state for this Tort in addition to including intent also includes the situation where the defendant is reckless. And what reckless requires, as you may recall, is that the defendant consciously disregard a high probability, here that the information is false. It's much more than just being negligent. It requires proof that the defendant consciously disregarded, in her own mind, that she consciously disregarded a high probability that the information is false. So this is broader than intent but it's also a far cry from negligence. For scienter, either the defendant intends the information is false or is reckless...
- It's unlikely that in your Torts class you're going to be asked to go into this sort of detail but if you are, I just wanted you to know about those two different measures of damage for the Tort of misrepresentation.
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Negligence 5 results
- The most important tort in real life, even though most of you don't really care about real life at this moment, and in law school torts, is the tort of negligence. And for negligence, just like we did for the intentional torts, you want to break the tort down into its elements. The challenge is that the elements here are more substantial than the intentional tort elements. They require more depth of analysis. And you'll spend longer on them, much longer on any of them than you did as you zipped through the intentional torts. So, the elements for negligence, the way most professors will lay out the elements of negligence are as follows. And then, I'm going to give you a suggestion of a slight variation for you to think about, whether you find it helpful.
- Most casebooks skip the element of duty and hold that off in the examination of negligence. And I think it's probably a wise thing to do. Duty is very public policy driven and complex, and so like most books and most torts classes, I'm going to suggest that we're going to assume that the answer is yes, that there is some legal obligation, owing from the defendant to the plaintiff. And we're going to begin our examination by looking at what is the measure of that duty, what is the standard of care. And we'll look at standard of care and breach of duty before we think about the element of duty. So, we're going to assume that there's a duty in the cases that we're talking about now.
- So, the traditional approach is to look at the first element of the prima facie case of negligence as duty, the element of duty. And duty asks whether the law imposes a legal obligation from the defendant to the plaintiff. The second element is breach of duty, which is the failure to meet the measure of the expected duty, breach of duty. Third, cause and fact or actual cause, cause and fact which connects the breach of duty to the plaintiff's injury. Next element after that, proximate cause, legal cause, scope of liability, those are three names for the same thing, mostly known as proximate cause. And proximate cause really is maybe the hardest to define, but it asks whether there's a public policy reason to limit the scope of liability even though a duty is owing, and even though it's been breached. Then, the last element the plaintiff has to show is damages. After that, we think about affirmative negligence defenses. So, the prima facie case, duty, breach of duty, cause and fact,...
- My variation, so in my casebook and the way I teach this and some others teach it, is to identify standard of care as an element separate from duty and breach of duty. So then, would be duty, which is is there a legal obligation? The second would be the standard of care, which is assuming there is an obligation, duty's a yes/no question. So the answer is yes. There is some sort of legal obligation imposed by law requiring some obligation from the defendant to the plaintiff. That's duty. Standard of care is what is the measure of that duty? What's the measure of that duty? And then, breach of duty would be the failure to meet the standard of care. And so, I'm going to talk about standard of care as an element and it interacts with the element of breach of duty. They go together, but I'm going to separate them out for this ensuing conversation.
- Standard of care, the measure of the duty owed, the good news for us is there's really only a few. The first and most common by far is the reasonably prudent person under same or similar circumstances. Reasonably prudent person under same or similar circumstances. Second is the standard of care that applies to children. Third, the statutory standard of care known as negligence per se. Statutory standard of care. And finally, the professional standard of care. And most of the standards of care will fall into those four categories, and we'll take a look now at those standards of care, and then with that, examine the corresponding analysis of breach of duty. How do we decide once we know what the standard of care is, whether the defendant has risen up to that standard of care?
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Assault; False Imprisonment 38 results (showing 5 best matches)
- So, the next tort is assault. And most people think about assault and battery together. And you'll see that they often do arise together, but they are separate intentional torts. And assault is also a really old tort born in the 1200s, 1100s or something like that. And what's so interesting about it is it actually is designed to protect mental tranquility. So, there is a mental harm aspect to this tort. It is designed to protect against intentional invasions of one's mental tranquility where there is a threat of an imminent battery.
- The third old intentional tort that's been around for centuries is a tort called false imprisonment. It's designed to protect against intentional interferences with a person's freedom of movement, liberty of movement. And this tort arises where the plaintiff shows that the defendant intentionally confines the plaintiff in a bounded area against the plaintiff's will and the plaintiff is aware of the confinement or injured by the confinement. So, the elements here are intent, confinement in a bounded area against the plaintiff's will, and finally, the plaintiff is aware of the confinement or injured by the confinement.
- Another thing to observe here is that unlike criminal law, we do not have a merger doctrine in the law of torts. So, Parker would be entitled to recover damages for assault and he would be entitled to recover damages for battery. He has two separate intentional tort claims.
- So, let's start with what intentional torts have been committed? Who can recover from which intentional torts? We can start with Beavis. Beavis won't recover easily for the tort of assault. Donny had the purpose, the goal intent to put Beavis in fear of a battery. And indeed, Beavis was in reasonable apprehension of being battered, of getting shot when this gun is pointed at him. Whether it was loaded or unloaded, in this case, we know it's loaded, but even if it were unloaded, as long as Beavis reasonably believes that it's a loaded gun, he'd have a claim for battery. So here, Beavis clearly has a claim for assault. And again, that was Donny's purpose intent, to place Beavis in fear of a battery. And indeed, Beavis was in fear of an imminent battery. No problem, Beavis recovers damages for assault.
- So, before we look at the last intentional tort to persons that's a little bit different, intentional infliction of emotional distress, let me remind you that the plaintiff can recover for all three of the intentional torts that we've looked at, recover damages for each one. There's no merger. So, if Deville goes up to Patricia and pulls out a gun and says, "Get in this closet. I'm gonna lock you in this closet," and shoots Patricia in the arm and locks her in the closet, Patricia has an action for battery, assault, and false imprisonment, and can get damages for each.
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Necessity 5 results
- The final defense of privilege we're gonna look at regarding intentional torts is the defense of necessity, necessity. And this is also a criminal law defense, but it's a bit different in tort law. The idea behind necessity is we are acknowledging that the defendant did the right thing, even though the defendant committed an intentional tort or several intentional torts. The greater good supports the commission of that intentional tort. You've got two categories of necessity, public necessity and private necessity.
- So, that brings us to the end of intentional torts. Key here is to create notecards, mental checklists of the elements of each intentional tort, the prima facie elements, each intentional tort. And be prepared to talk about multiple intentional torts in an essay. Then, after you've done that, think about and be sure to think about are there any defenses of privileges that the defendant will try to prove here? Even if you think the defendant might ultimately lose, if there's facts that suggest that you might want to at least raise and discuss the issue, raise and discuss it even if you ultimately conclude that the defense is going to fail. That is the end of intentional torts.
- If that's all that happens, no claim for trespass to land will be permitted by Prince, because we would say, "You did the right thing, defendant. The greater good is protecting your life, your property for this commission of this intentional tort." But, what seems a bit baffling is that for private necessity, on one hand, we giveth and we say, "Congratulations, defendant. You did the right thing. You made the right decision. The greater good was doing what you did, protecting your life and your property, and committing the intentional tort was the proper thing to do, the lesser evil in this situation." However, we then turn around and we say, "But if you cause harm exercising your defense of private necessity, you have to pay for that harm." So, what happens in the Vincent case is that the boat keeps banging up against the dock of the plaintiff. And the court says, "Yep, defendant, you did the right thing. Congratulations. And now you've got to pay the plaintiff damages, even though...
- Public necessity as the name suggests, involves situations where the defendant is committing intentional torts to benefit the general public. An example, a very famous one that most of you will look at in Surocco v. Geary is that there's an earthquake in the city of San Francisco. And as a result of the earthquake, there are big fires. To stop the spread of fires, the mayor of San Francisco orders the creation of a fire wall that includes the dynamiting of Surroco's home. So, a police officer knocks on the door of the Suroccos' and says, "We've got good news and bad news. The good news is we're not going to dynamite your house with you in it. We're going to give you 10 minutes to get ready to leave. The bad news is we're going to destroy your house and everything in it." And they do. And the Surocco's are not amused. Their house and all of its belongings are destroyed, so they bring a claim for conversion against the city of San Francisco, the mayor of San Francisco, the police...
- Private necessity is a bit different, because private necessity is the same idea, but the private individual, the defendant is acting to protect her own interest, not the general interest of the public at large. And Vincent v. Lake Erie is by far the most famous case that's most likely that you will look at or have looked at, involving private necessity. What happens there is the defendant is out and about and suddenly, without any forewarning, a huge storm erupts. In order to protect his own life, to protect his boat, protect the valuable cargo on that boat, he goes and ties his boat to the nearest dock. The dock is owned by Prince or the Artist Formerly Known As, may he rest in peace. But, Prince is a privacy freak and there's all these signs, "Do Not Enter," "Private Property," "Go Away, I Hate You," but nonetheless, the defendant ties his boat up against that dock, and is sued for trespass to land.
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Consent 13 results (showing 5 best matches)
- But again we've got expressed consent and implied consent. For many of the other defenses to the intentional torts, it's very similar in tort as it is in criminal law. So, there's self-defense and defense of others, which are defenses in criminal law, just like they are in torts. And they work very much the same way.
- If the plaintiff consents, there cannot be liability for the intentional tort. So if a plaintiff consents to be confined, consents to have someone borrow their car, they can't then come back and say, "Well, I'm suing you for false imprisonment or trespass to chattels." So we wanna look for facts that indicate that there was some consent on the part of the plaintiff. And for consent, it can be expressed consent or implied consent. Expressed consent is by words, by written or spoken words, where the plaintiff basically says, "I am consenting to you committing what would otherwise be an intentional tort against me."
- But there's some level of reasonableness implicit in expressed consent. So if Doreen sees me from across campus, and she sees me about to put the Twinkie into my mouth, and she pulls out an Uzi, a gun, and she blows off my arm with that gun, I will recover for battery. Because that's gonna be just viewed as so excessive that no one could reasonably believe that my expressed consent to intentional tort would include having my arm blown off. So there might be some room to debate in an essay, what was the scope of the plaintiff's consent?
- You will surely see, when you study this, that the focus is on what the defendant reasonably believes, not what is going on in the mind of the plaintiff, not what the plaintiff is actually thinking. So the plaintiff may say, and maybe we'll even believe her, when she says, "I did not really give consent." If the defendant reasonably believes there's consent, based on her conduct, then a court will find consent, and there will be no recovery for an intentional tort.
- Now, you might imagine, who would do such a thing? Well, I'll give you an example, me. I've decided, ever since there was that horrible scare that Twinkies were gonna be taken off the market, ever since that horrible day, I cannot stop eating Hostess Twinkies. So I tell my class, "Look, you guys, you need to help me out here. I'm gaining weight. I don't know what to do. If you see me about to eat a Twinkie, please do what you need to do to stop me." My students stopped coming to torts class and they have a 24/7 vigil around the one vending machine on campus that sells Twinkies because they know I'm weak, and I am.
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Battery 21 results (showing 5 best matches)
- There's a couple other things that take away from that case that many of you have occasion to look at. The other point is you're like thinking, "Well, why would you sue a 6-year-old?" Does that mean the parents are liable? Is that why you sue a 6-year-old? Well, the general rule in American tort law is that parents, just by virtue of being parents are not liable for the torts of their children. They are not what we call vicariously liable. And later we'll look at vicarious liability, which usually applies between employers and employees. Parents are not just by virtue of being a parent responsible for the torts committed by their children. So, Brian Dailey's parents are not on the hook for liability, Brian Dailey is. Now, it may be that there was a homeowner's insurance policy that would include Brian Dailey's intentional torts, but often intentional torts are not covered by homeowner's insurance. So, it's kind of a wild thing here that elderly Mrs. Garratt is suing 6-year-old Brian...
- And battery involves protection against intentional invasions of one's bodily integrity. It's useful to know, why does this tort exist? So, when we think about it in context, it will make more sense. So, there was this problem that when people were intentionally harmed by others, rather than seeking legal redress, they would take matters into their own hands. So, there was a lot of revenge, a lot of bloodshed, a lot of "Game of Thrones" kind of sorts of violence. And so this constituted a breach of the king's piece, so the king was like, "Hey, let's create this legal system and you should go to court to seek resolution of these disputes rather than going and killing each other and maiming each other." So, that was the idea. And the first tort was this tort of battery designed to protect against intentional invasions of bodily integrity. Things like murder, the crime of murder is called battery in the context of torts, not nearly as traumatic when we call it battery, but the same idea.
- It seems to me, however, that even if you live in Los Angeles where a car psychologically seems to be part of a person's body. If a person was in her car, windows closed, she's sitting in her car, and the defendant comes by and angrily spits on the car tires, calling the plaintiff horrible names. That probably would not be enough to constitute a battery because there wouldn't be enough contact, there wouldn't be any of that really constitute contact with the plaintiff's body. Because the injury in battery is contact with the plaintiff's body or something physically, closely connected to the plaintiff's body such as glasses or a hat on their head, or something, the plaintiff need not be aware of the contact at the time it takes place in order to recover for the tort of battery. So, if after one of my best tort classes, my student, Priscilla, falls asleep. And she's fast asleep, all the other students leave the classroom. And along comes Barney, not the hipster Barney from the show, "...
- Similarly, it matters who the defendant is because if the defendant is insane, the question arises. Will that insane defendant be liable for an intentional tort? And just like with kids, the answer is if the insane defendant can form the intent, he's liable for the intentional tort even if the result is due to some sort of insane delusion, some severe mental illness. So, assume that Brian Dailey suffers from some severe mental disease. So, when sweet Mrs. Garratt comes out from the back door of her house with a tray of freshly baked chocolate chip cookies, Brian Dailey because of some insane delusion thinks that Mrs. Garratt is really Adolf Hitler and that those cookies are really grenades. So, Brian Dailey picks up a rock and hurls at who he believes to be Adolf Hitler, hitting Mrs. Garratt in the head with the rock. Brian Dailey would be liable for battery as a general proposition even though he is mentally ill or insane. But there's a twist. There's a twist that some of you but...
- There is this concept, a very trippy and challenging concept in tort law dealing with intent based on what we call the doctrine of transferred intent. This doctrine of transferred intent applies to battery, assault, false imprisonment, trespass to land, trespass to chattels. When we talk about those torts, transferred intent can apply to those. It's not intuitive, it's a wacky, wacky concept. But we'll start simply and we'll see how it gets more complex in a little while.
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Product Liability 78 results (showing 5 best matches)
- The third and most important legal theory in product liability is a tort called strict product liability. And in our little world of torts, the fact that this was created in the 1960s makes this a relatively new innovation. It's extremely challenging to get a handle on the tort of strict product liability.
- Product liability is an area of law that arises where a person suffers injury due to a product. There are various legal theories that a plaintiff can assert in this area of product liability. There could be misrepresentation. There might be a battery claim. And the three most common are negligence, breach of warranty, and a tort, a relatively new tort called strict products liability. And so, we're gonna focus primarily on negligence, warranty, and strict products liability as we talk about this general area called product liability.
- Did the retailer act reasonably? Yes or no. Did the wholesaler act reasonably? Did the manufacturer act reasonably? And focusing on their conduct. Proving fault is often a challenge. So, there are two other theories of liability that apply in the product context that do not require the plaintiff to prove fault. One is warranty and the other is a tort called strict product liability.
- The concept behind strict product liability is that it's a liability without proof of fault. Many of you have occasioned to look at the case of Greenman versus Yuba Power Products. And this was the start, and this is what influenced the drafters of the second restatement to create this tort of strict product liability. But because it's an outgrowth of warranty, like warranty, we have strict liability.
- It's challenging because there is a starting point, which is the second restatement of tort, Section 402A, 402A, which you probably will talk about if you haven't already in your torts class. But then, beyond 402A, jurisdictions have added their own interpretations or brought in their own way. So, you've got sort of this separate common law development beyond 402A, from the second restatement. And then third, to make it even more complicated, there is now a third restatement of product liability.
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Intentional Infliction of Emotional Distress 20 results (showing 5 best matches)
- We might choose to lovingly call it IIED intentional infliction of emotional distress. And in the somewhat pathetic little world of torts, this is considered a baby tort, a brand new tort because it was born in the 1940s. Those other torts we've been talking about have been around from the 1100s but this was a tort created in the 1940s as a stopgap to fill a gap where there is bad intentional conduct. But it's not a battery, it's not an assault, it's not false imprisonment but we think there should be recovery. So there is this stopgap tort called intentional infliction of emotional distress or IIED.
- There has to be a causal connection. The plaintiff has to show the reason they've suffered severe emotional distress is because of the defendant's extreme and outrageous conduct. As a practical matter, causation is an element of all torts so there's nothing surprising about this. What is surprising is unlike for battery, assault, false imprisonment where, in those torts when the plaintiff shows the elements of the tort, they can recover true substantial damages. The plaintiff was locked in a room for three hours intentionally, is aware of the confinement, gets real damages for that. The plaintiff drinks urine-tainted coffee gets real damages for that. But for intentional infliction of emotional distress, the courts require the plaintiff to prove severe emotional distress. They don't wanna deal...the courts don't wanna deal with trivial claims.
- For intentional infliction of emotional stress, the plaintiff has to show first that the defendant was intentional or reckless. Know how this is different here that the plaintiff has to show the defendant was intentional or reckless. Second that the defendant engaged in extreme and outrageous conduct. And next, that this extreme and outrageous conduct caused the plaintiff to suffer severe emotional distress. That the defendant intentionally or recklessly engaged in extreme and outrageous conduct which caused the plaintiff to suffer severe emotional distress. So right off the bat here this mental state aspect is different. We've got intent so to show that the defendant desired to bring about emotional distress or knew that emotional distress was substantially certain to result would satisfy that. But we also have only for this tort the mental state of recklessness. And reckless is where the defendant consciously disregards a high probability of harm. So for this tort, the plaintiff...
- So if, for example, Dorcas stabs Paul's father in front of Paul and knows that Paul is the victim's son. Even though Dorcas didn't perhaps have the purpose or goal to inflict emotional distress on Paul. And even though it's quite possible the defendant didn't know that emotional distress was virtually certain under recklessness, given the fact that Dorcas knew that Paul was his victim's son and was there, that he was at least reckless. He would consciously disregard a high probability of emotional distress. So you can expand the reach of this tort through the mental state of recklessness.
- The last intentional tort to persons is called intentional infliction of emotional distress.
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Trespass to Land 8 results (showing 5 best matches)
- Now, there's also intentional torts to property, to personal property and to real property, and these are, let me say a little trippier, a little different than the intentional torts to a person. So you want to be a little careful here and we're going to look at trespass to land and trespass to chattels, and conversion. Trespass to land involves the situation where the defendant intentionally enters land that turns out to be the plaintiff's. Or the defendant intentionally causes something to enter the land that turns out to be the plaintiff's. The idea of this tort is it protects one's possessory interest in land. The people who made these rules in the common law from England were the land of aristocracy. So, they have all sorts of rules that are very protective of them, that makes it easy for them to recover and tort against other people.
- Okay. That then takes us to the end of the intentional torts to persons. And I just want to underscore the fact that if you're a law student listening to this and you get an essay involving intentional torts, it's very common to have a variety of intentional torts. You could have a case where Dell pulls out a gun, points it at Paul, tells Paul that he's going to kill him if he doesn't go into the closet. He walks over, Dell walks over to Paul, grabs Paul by the shoulder and takes him over to the closet and locks him in the closet, and keeps him there for five hours. You've got battery, assault, false imprisonment, and maybe even intentional infliction of emotional distress. You can talk about all of those. You go through the elements. And the plaintiff would be entitled to recover damages for each one. So, you could talk about each intentional tort separately.
- Now, she's not probably going to get any substantial damages. This is one of the few areas of tort law where there are nominal damages. And so Prunella will likely recover only a small amount, $50, $100 of nominal damages to proclaim to the world that this was really her land, and that Delbert was a trespasser to that land. However, there is a rule that you can think of this as the transferred intent option, or something called the extended consequences doctrine that applies with intentional torts, that once a person's committing an intentional tort, they're liable for all harm caused, whether foreseeable or not.
- So, for trespass to land, the plaintiff only has to show that the defendant intentionally entered land that belonged to the plaintiff, and by so doing, interfered with the plaintiff's possessory interest in the land. So we want to think about intent, land entry, and that it's the plaintiff's land. By far, the trickiest part of trespass to land is the intent element. It will make sense to you if you think of it this way. The wrong focus, the focus you should not take. It is not the intent to trespass. That's the focus for the tort of trespass to land. It is the intent to enter the land. The intent to enter the land. Why this is so important is because what this means is, if the defendant is mistaken and even has a good faith mistake, that they have the right to be where they are, they will be liable for trespass to land.
- If they are bad and they want to trespass because they were trying to mess with the defendant, then they'd be liable potentially for punitive damages. So, if Delbert knew this land was Prunella's land and that Prunella did not want people entering her land, and just to mess with her, and just to upset her, or to use a legal term, just to piss her off, entered the land, then there would be punitive damages as well. But, the key is that one could be acting in good faith and innocent, and still be liable for trespass to land.
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Intentional Interference 6 results (showing 5 best matches)
- All right, now, let's look quickly at two other economic torts. Often not tested and often not taught. And where taught usually covered relatively quickly, misrepresentation is typically the most important of the economic torts. But there's also a tort called Intentional Interference with Contract, and another called Intentional Interference with Prospective Economic Advantage. Intentional Interference with Contract, IIK, and Intentional Interference with Prospective Economic Advantage, IIPEA, if you wanna abbreviate them that way.
- They're related, but they're distinct. For Intentional Interference with Contract, this tort is all about protecting the sanctity of contracts. In American law, we're very serious about business and we're very serious about protecting contracts. So, in the situation of Intentional Interference with Contract, the plaintiff shows that the defendant knew that the plaintiff had an existing contract with a third party. That the defendant knows that there's this existing contract. And second, with that knowledge, the defendant acts to make it more difficult for that contract to be performed. That's all it takes.
- It's fine if the defendant is acting to have the contract breached, but it's enough if it's making it more difficult to have the contract performed. And the fact that the defendant is acting out of a competitive interest, is not a defense here. Because, in light of the existing contract, courts are protecting the sanctity of their contract. So, assume that this is probably something that's kept you up at night, it certainly keeps me up at night that there might be a worldwide widget shortage. And so, Danco finds out and read and they really want their widgets and they know there's this pending worldwide widget shortage. And they know that Potty Company has a contract with XenaCo. And Potty Company through this contract with XenaCo basically, has agreed to buy all of XenaCo's widgets.
- Danco contact XenaCo and says, "Listen, have we got a deal for you? We will pay you three times what Potty pays you for your widgets." Not surprisingly, XenaCo's, "Sweet, right? Just sweet, three times." And they sell their widgets to Danco instead of Potty. Potty will recover against Danco for Intentional Interference with Contract, because even though Danco was acting under its competitive interest, it needed these widgets, they knew there was an existing contract and acted to have it breached. And damages can be significant here. Huge damages, including punitive damages in some of the most famous cases in this context, because America's very serious about business and its contracts.
- Intentional Interference with Prospective Economic Advantage is different in that there is no existing contract. There is a business relationship, but it hasn't been reduced into any sort of contract yet. And here, we're cool with competition, right? We generally admire competition. So, for the plaintiff to recover for Intentional Interference with Prospective Economic Advantage, the plaintiff has to show that the defendant knew that there was this relationship, this relationship that was gonna confer a prospective economic advantage on the plaintiff and acted solely out of a desire to hurt a plaintiff.
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Trespass to Chattels 7 results (showing 5 best matches)
- Courts don't want to deal with insignificant property invasions, and that's why here there's a requirement of proof of harm. Although so far, the other torts we looked at, trespass to land and all other torts except intentional infliction of emotional distress, did not require proof of harm as a separate element. But here, it is a required separate element.
- But, we probably would establish the elements of trespass to chattels. There is this idea again that we just don't or courts don't want to deal with trivial claims for trespass to chattels, so there has to be some injury. Now, you may or may not want to try this to make your tort studying more enjoyable. But, the F word of tort law, foreseeability, comes up over and over in your tort studies. So, assume that Dina and Paula are studying together, they're studying torts, they're in the same first year section, and they're studying at Paula's house. And they're playing the F word game, which is every time the word, foreseeability comes up in the reading or in their discussion, they do a shot of tequila. So, after they've polished off one bottle of the study aid tequila, Dina says to Paula, "We need to keep studying. We need more tequila." And Paula says, "Okay, I'll tell you what. I'll work to the corner store, but I'll do so on one condition, which is while I'm gone, do not touch my...
- There are two intentional torts to personal property that are related, and related in the sense that you want to think about them together. One is called trespass to chattels, and one is called conversion. They both deal with intentional interferences or invasions of personal property. The reason your friends and my friends think lawyers are so annoying is that instead of calling personal property personal property, we for some reason like to call it chattel. "I'm going to go to the store today to shop for some chattel," kind of is really pretentious and annoying. So, while we call this first tort trespass to chattel, you could think about it as trespass to personal property. And for this tort of trespass to chattel or trespass to personal property, the plaintiff has to show by preponderance of the evidence more likely than not that the defendant intentionally interfered or intermeddled or messed with the plaintiff's personal property, causing it harm. Again, the elements are intent...
- Dino takes the jacket, which is really Paul's jacket, and walks out the door of the restaurant. Does Dino have the intent for trespass to chattels? Absolutely, yes. Was it Dino's intent to mess with, to intermeddle with, to deal with, to touch and take that blue denim Levi jacket? Absolutely. It was his purpose and goal. Why? Because he reasonably and honestly believed it was his jacket. Is there a recovery by Paul against Dino for trespass to chattels? That depends. If what happens is Dino walks two blocks and says, "Oh, this isn't my blue denim Levi jacket," and walks back to the restaurant, he's been gone seven minutes, and he walks into the restaurant, and Paul says, "I am going to sue you for trespass to chattels. That was my jacket. How dare you. Pay me money." Paul's going to lose, because even though Dino had the intent for trespass, and even though it was personal property, and even though it was Paul's personal property, there was no harm, no damage. There needs to be...
- Now, you've probably surmised by this point in listening to these recordings that I am something of a hipster. And of course, you're totally right. Okay. Well, maybe I'm not a hipster now, but I was so hip in the '70s that I worked for The Gap. And I worked for The Gap at a time that The Gap sold Levi products. And one of the things we sold were blue denim Levi jackets. I swear there's a point to this, I swear. So, everybody had a blue denim Levi jacket. Many of you listening to me right now, you may well be hip enough that you also have a blue denim Levi jacket. So, let's assume there's a restaurant, diner with a coat rack. And in comes the defendant, Dino. Dino is wearing a blue denim Levi jacket, and he hangs that blue denim Levi jacket on the coat rack. Paul, 20 minutes later, comes into the same restaurant diner wearing an identical blue denim Levi jacket. He hangs his blue denim Levi jacket on the coat rack right next to Dino's blue denim Levi jacket. Dino gets up to leave the...
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Defenses to Intentional Torts 2 results
- At that moment, the defendant has the opportunity to claim that there should not be liability for the intentional tort because of some defense. And when we talk about an affirmative defense, we mean that the burden of proof is on the defendant to establish that affirmative defense. And these affirmative defenses are sometimes called privileges in the context of intentional torts. I think the most important defense, and the one to keep in mind for all intentional torts, is the defense of consent.
- Okay, now that we've looked at the intentional torts to persons and property, the next analytical step is to think about whether the defendant has any, what we call, affirmative defenses or privileges that the defendant can assert. In other words, you first want to establish the prima facie elements, that the elements the plaintiff has to prove to establish the tort. So now, we're assuming the plaintiff has been able to establish false imprisonment, trespass of chattels, trespass to land, whichever intentional tort, it's now been established.
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The Statutory Standard of Care (Negligence Per Se) 11 results (showing 5 best matches)
- The third standard of care in negligence is the statutory standard of care, also known as negligence per se. Let me start by explaining what this is now about. If you have a tort statute, then it applies and a judge has no discretion. So, if the legislature in the state of panic passes a statute that says, "In a car accident, any party who is not using an available seat belt is barred from recovery for damages." And the facts show that Pauline Plaintiff was not using an available seat belt at the time of the accident. She's barred from tort recovery based on that statute. What makes negligence per se the statutory standard of care so intriguing is that we're talking about statutes here or ordinances or regulations that are silent as a tort liability. They do not mention tort liability. But, in proper cases, a judge will adopt that statute, ordinance or regulation and use it as the standard of care instead of the reasonably prudent person under same or similar circumstances, even...tort
- Let me give you, I think, a straightforward example. The state of Missouri legislature passes a law that says, "All drivers must use headlights after dusk, or be subject to $1,000 fine." All motorists must use headlights after dusk, or be subject to $1,000 fine. That's a criminal statute. That's a criminal law. It's imposing a $1,000 fine that goes to the state for its violation. After dusk one evening, Darla is driving her car and collides into Patty. Darla is not using her headlights in violation of the statute. If there were no such thing as tort law, which at this moment may sound very, very appealing to you, Darla would still be subject to some liability, she'd have to pay $1,000 fine or a fine up to $1,000 pursuant to the criminal law of the jurisdiction. But, there is tort law. So, when Patty sues Darla, Patty says, "Rather than using the reasonably prudent person standard of care and give the jury all this discretion with BPL, and deciding whether Darla drove reasonably or...
- And common sense will tell you that the reason the legislature enacted such a statute was to prevent other motorists like me from being collided into because of the lack of the use of headlights. That's the harm I suffered. I'm in the protected class. This is the type of harm." And in a majority of jurisdictions, in negligence per se jurisdictions, that statute becomes the standard of care. Instead of reasonably prudent person, the standard of care becomes drivers must use headlights after dusk. And breach of duty, instead of being BPL and reasonableness, breach of duty is simply the violation of the statute, the violation of the statute. And the jury has to decide was Darla driving after dusk without her headlights on? Yes or no? She was, she breached her duty by violating the statute.
- Now, that doesn't mean that the plaintiff has won. Paula still has to show the other elements, such as cause and fact causation. She has to show that the failure to have the headlights on was a contributing factor to the injury, that is a causal connection between that statutory violation and her injury. But, the statute becomes a standard of care and breach of duty is shown by the violation of the statute. How does a judge know whether to use one of these statutes and ordinances and regulations? Well, sometimes we just look at the language of the statute. Sometimes we can look at legislative history, and sometimes we use common sense.
- Another example, imagine that the state of Joy legislature passes a law that requires all railroads to build secure fences between their property and neighboring property. Dunn Railroad violates this statute, so there's a wobbly, crappy fence between the railroad's property and Pierre's property next door. One day, after employees of Dunn Railroad, had just mowed the strip of lawn against that wobbly fence, Pierre's favorite cow, Mumu spots the freshly mowed grass on the other side of that fence. She walks up to the wobbly fence, knocks it over with ease, and Mumu eats herself to death. Pierre is not amused and sues Dunn Railroad, saying, "You should be negligent per se. My cow was in the protected class," and that might be, that might be. That people and animals might have been in the class designed to be protected. But ultimately, Pierre's going to lose because Pierre won't be able to show that this is the type of harm against which the statute was designed to protect against....
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Defamation 34 results (showing 5 best matches)
- The "Daily Diatribe" publishes an article, a headline that says, "The female torts professor at ACME Law School has been arrested for bank robbery." And Professor Paulina is the only torts professor at ACME law school. She can allege colloquium that it's of and concerning her as the only female torts professor. And if there were two female torts professors because it's such a small group, both could say people are gonna tie me to this, a group defamation. And if you got a small group of single digits, courts will allow all those people to sue for defamation if they can show that people who read this or saw or heard the defamation tied it to them. If it's a huge group... So the Daily publishes an article that says, "All lawyers in the state of..." or even let's say, "Most lawyers in the State of Panic are greedy ambulance-chasing swine," and the lawyers in the state sue, they would lose because it's too big of a group and the court wouldn't allow the case to proceed.
- She recovered substantial damages simply by showing people read this, they connect me to it. They think ill of me. It's defamatory. It subjects me to scorn and ridicule. So common law is a really easy tort for plaintiffs to recover. They said now plaintiffs are typically have to prove falsity, and no longer as a general proposition is defamation is strict liability tort. Some level of fault is typically required. At what level of fault. Well, this is where things get really ugly, get really complicated. Before 1964, defamatory communications had no First Amendment protection. They were deemed to be scum speech, worthless speech because it was false. But in 1964 in New York Times versus Sullivan, which many of you will certainly look at in this context, the Supreme Court of the United States said we're gonna go all the way from a strict liability tort to a high level of fault, where you've got a public official who's being defamed in her capacity as a public official.
- The first is slander regarding the plaintiff, suggesting the plaintiff is unfit to perform in his profession or trade, that he's unfit to perform in his profession or trade. Stating that Madonna's bodyguard is a coward would be slander per se. Stating that the torts lecturer on this tape is a coward would not be because I can be a huge coward. And remember, let's assume it's false. Just give me that for the moment. Even assuming it's false, it doesn't mean I'm unfit to be a torts professor because I'm a big coward. So it has to be connected. So first is unfitness for one's trade or profession.
- Our focus now shifts to the rather complicated tort of defamation. Defamation is a challenge for a couple of reasons. One is that it has some historical baggage. You know, the people who made up these rules were rich, important people. And the only thing more important to them than their money and their land was their reputation. So not surprisingly, defamation law originally was created to be extremely protective of reputation. And therefore, plaintiffs could recover quite readily as we'll explain in a few moments.
- And then, starting in the mid-1960s, there's all this First Amendment Law protecting freedom of speech and freedom of the press that changed the dynamic of defamation. And so, we've got constitutional law issues to deal with after we grasped the common law tort aspects of defamation. Defamation is about false reputation-harming communications. They can be oral communications which are called slander. They can be written, what we call libel. And I'll talk a little bit about those in a few moments. But the bottom line to defamation is that you have false reputation-harming communications. So every insult is not defamatory. Every negative comment about someone is not defamatory. And certainly, if something is true about someone, it's not defamatory.
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Damages 25 results (showing 5 best matches)
- Now, I wanna talk just a little bit about the role of damages in torts. And I talked briefly about this just a little while ago. But in torts, there are really three kinds of damages to keep in mind. There are nominal damages, punitive damages, and compensatory damages. And all of those are not always available for any kind of tort. Let's talk briefly about nominal damages. Nominal means in name only. It's a token some like 6 cents or $10. It's a statement by the jury that they are allowing the plaintiff to vindicate a right, to acknowledge that the plaintiff has a claim, but not really any kind of significant or real damage.
- In those cases, it was found that the defendant was bad enough. There was fraud, or oppression, or malice that justifies the imposition of punitive damages. There's a lot of debate about whether punitive damages are appropriate in the tort system at all, because after all, it's the criminal justice system, that's really concerned with punishing and deterring. And virtually, all jurisdictions agree that there is a time and a place for punitive damages in the law of torts.
- Compensatory damages are the most commonly awarded in the world of torts, and are the crux and the sole real damage in the context of negligence. It will vary based on your torts class, how much detail you go into on the topic of damage and other remedies. You look at this, for many of you, at least, again, in a class that is focused on this issue called remedies. So let me be relatively brief, but talk a bit about damages. It's obviously, very important.
- And the Supreme Court also has said that you can really only punish the defendant for the harm they caused in the case before them, not just the generalized harm that they've caused. Other plaintiffs can sue for punitive damages in their actions. And there's an issue about what we do with allowing punitive damages in many cases in these mass tort liability cases.
- For punitive damages, unlike in many situations in torts, motive matters a great deal. Early on, Professor Fens told you that, as a general proposition, motive isn't the focus for liability in tort. That's absolutely correct. But in the context of punitive damage, motive is everything because in order to justify punishing the defendant, we need conduct that is bad enough to justify the imposition of this kind of basically a penalty. And so conduct for punitive damages has to be more than just negligent. If the defendant is simply unreasonable, punitive damages are not recoverable. You need something more than unreasonable conduct, though.
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Joint and Several Liability 6 results (showing 5 best matches)
- In the context of negligence, the most common kind of injury is personal injury and property damage. Where you've got personal injury and property damage, those are typically readily recoverable, and there's all sorts of issues about how to prove them, and some other issues that we'll get to in a bit about the damage rules as they apply in negligence and frankly, for the other torts as well, because damage and damages are recoverable for other torts in addition to the tort of negligence. But for now, the idea is that if you've got personal injury or property damage, we typically don't have any special challenges. Where the injury is something other than personal injury or property damage in a negligence context, the assumption is indeed now that we have a particular challenge, where the injury is something other than personal injury or property damage, such as emotional distress or pure economic harm, or the birth of a child. In those contexts, we're going to have particular...
- The next element of the negligence cause of action is the element of damage or damages. Unlike in some torts, such as battery, where the plaintiff simply proves the elements and accordingly is permitted to recover significant damages for the injuries, such as when the plaintiff shows that there was an intentional harmful or offensive contact with that plaintiff's person, and the jury awards real money for that invasion of one's bodily integrity. For negligence, the plaintiff has to prove actual injury, real cognizable harm. So, we don't allow nominal damages, for example, as we might do for trespass to land just to vindicate the plaintiff's right. The plaintiff in negligence has to prove actual harm, a real injury.
- Under joint and several liability, Parthenon can sue just one. Let's assume that you have Archie Trump and Baker Poor. It might not shock you to know that Parthenon chooses to sue Archie Trump, the deep pocket. If Parthenon sues just Archie, Archie, under joint and several liability, is on the hook for the million dollars. Now, Archie has a remedy. Archie can seek what we call contribution, partial repayment back from Baker. But if Baker is true to her name, Baker Poor and she has no money, then Archie under joint and several liability is on the hook for the full amount.
- I mentioned earlier that there's this doctrine called joint and several liability. In real life, it's extremely important. The good news for us is we don't have to go into great depth, but I will explain to you what happens in some of the cases. So, let's look at that now. Of course, if you have a professor who really wants to go into depth in joint and several liability and gives you statutes to analyze about joint and several liability, that's your, shall we say, good luck or bad luck, depending on your perspective. But, most of the time in law school, we approach this concept broadly. When we looked at cause in fact, we saw that sometimes the "but for" test doesn't work and we have to use a substantial factor test instead. Or we've got cases with multiple defendants contributing to indivisible injury. This is where joint and several liability is going to matter.
- Several liability means that the defendant is only responsible for his or her share of the harm. Under situations of several liability, each defendant only pays for the harm they caused, often based on their percent of fault. Jurisdictions have adopted a variety of different statutes that have limited the reach of joint and several liability. And when we talk about damages in a little bit, we can come back and think a little bit about how these damage rules apply to joint and several liability. But for now, it's just enough to understand the general concept, and under the common law that where you've got multiple defendants, each of whom is a substantial factor in indivisible injury, those defendants are jointly and severely liable.
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Self Defense 4 results
- So, for self-defense, if the defendant, honestly and reasonably, you need both, notice it's an and, honestly and reasonably believes that the defendant is threatened with imminent harm, the defendant may respond with proportionate force and not be liable for intentional tort. So, you need the defendant to honestly and reasonably believe that there is this threat of imminent harm, and the defendant responds with proportionate force, at which point there's self-defense. And as a situation of affirmative defense, if the defendant proves this and if there's room to debate it's for the jury to decide, if the defendant has proven these elements. But, if the jury finds that they've been established, then there's no liability for the intentional torts, typically battery and assault.
- So, what this is telling us is the defendant can be wrong and still have a defense of self-defense. Now, let me give you an example of this. Assume that after Torts class one day, Paula and Donna get into a screaming match, that includes a comment from Paula saying to Donna, "Wait 'til I see you alone. The next time I see you alone, I'm going to teach you a lesson that you will never forget. You will not be able to walk for a month when I am through with you," says Paula. Later that evening, Donna is getting into her car in the dimly lit parking lot at the law school. Donna looks up and there is Paula, walking briskly toward her with something in her hand. Donna looks and thinks the thing in Paula's hand is a rock, and as Paula gets closer, Donna picks up a rock and hurls it at Paula, hitting Paula in the head. Paula sues Donna for battery and assault. Donna asserts the defense of self-defense. Does she have a claim of self-defense? Well first, we have to ask does Donna honestly and...
- What if instead, Donna reaches into her glove compartment and pulls out a gun and blows off Paula's arm? What happens there? Well, the problem there is that at least arguably, Donna has responded with non-proportionate force. She responded to non-deadly force with deadly force. And if one responds with force that is not proportionate, then one loses the self-defense defense. So, that seems to be excessive force. There's also in some jurisdictions, an obligation for the defendant to retreat before using deadly force, if safe to do so. Here, it's not clear if it would have been safe to do so. Certainly if Paula had a gun and was coming towards Donna, Donna would have every right to pull out a gun and shoot Paula under self defense. Some jurisdictions do have what's called a retreat obligation. One never has to retreat from their home. But, in retreat jurisdictions, the defendant must retreat before using deadly force, if it's safe to do so. But, never from one's own home. In non-...
- Then, the question is, does Donna respond with proportionate force? She thinks she's going to be hit by a rock. She responds by throwing a rock. She responds to non-deadly force. With non deadly force, she responds with proportionate force. So yes, it looks like that element of self- defense is met as well. But, what if we add the fact that it wasn't a rock that Paula was carrying in her hand? Instead, it was a gift-wrapped paperweight with a note of apology in which Paula was apologizing to Donna for Paula's bad behavior that day and other days throughout the semester. Does that change the result? And the answer is no. It does not change the result, as long as Donna honestly and reasonably believed she was threatened with imminent harm and respond with proportionate force. So, even though she was wrong, even though she really wasn't at risk, she still has a claim for self-defense. Very important to note that.
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Invasion of Privacy 7 results (showing 5 best matches)
- The second privacy tort is called appropriation or commercial appropriation. This is the oldest of the privacy torts. In these cases, the plaintiff isn't complaining about information being divulged about them. They want to be paid and what this tort is about is where there is an unauthorized use of the plaintiff's name, likeness or identity for a commercial purpose. The plaintiff says, "Pay me, pay me." Joan Rivers recently said, "I'm my own industry, right? My name, my likeness, my voice is a profit-making enterprise." Well, the first element is that you need an unauthorized use. So, obviously, if the plaintiff gives permission, there's no claim. And assuming it's unauthorized without permission. Second, you need the plaintiff's identity, and here courts go beyond just their face, or their picture, or photo of them. But, it could be their voice, their likeness, anything that connects them to some commercial use. In one case, Bette Midler was the plaintiff and recovered because...
- The third privacy tort is called intrusion, and intrusion arises where the defendant intentionally and unreasonably interferes with the plaintiff's physical space. It really is, like, in California speak, like getting into the plaintiff's space, the plaintiff's physical sphere of privacy. So, just seeing something that's open to the public eye isn't intrusion, just being vigilant, right? Just noticing things around you doesn't give rise to intrusion. But if I stalk you, that could be intrusion. If I peek into your bedroom late at night, if I eavesdrop electronically on your phone conversations, those sorts of things give rise to a claim for intrusion. Often the person who's committing intrusion, the defendant is committing other intentional torts like trespass to land as well. So, there might be liability for privacy invasion, for intrusion as well as other torts along with it. So, you wanna talk about all of them if they come up in a specific context.
- The final privacy tort is called public disclosure of private true facts, public disclosure of private true facts. And as the name suggests, it requires that the defendant publish, disclose, so here we've got some sort of sharing of information, about the plaintiff. That information is private information, the disclosure of which is highly offensive to a reasonable person. This is a hard tort for plaintiffs to establish and recover because courts define it narrowly and for a good reason. Unlike defamation and defamation we're talking about false information. Here we're talking about truthful information, and so the situations where people should be allowed to recover for having the truth divulged about them are quite limited. But look for the passage of time. Look for information that's deeply personal, such as somebody's medical record information, which is something that we view as very, very private, but the information has to be private. So, if the information has been disclosed...
- This then brings us to the end of our time together. Again, I'm deeply honored to have this opportunity to pick up on Professor Vince's wonderful work, and I hope that the transition was not unsettling for you. I'm not quite as zany as Professor Vince, but I so admire his work and hope that you found this brief overview of torts helpful. Now, as a law professor, it won't surprise you when I say that the coverage in these materials, while helpful, is not exhaustive, and is not a substitute for reading the cases carefully, and briefing the cases, and creating your own outlines, and all the other things that you've heard from many of us that you should do to succeed in your first year of law school. But this is a helpful adjunct along with those other things, and I hope you'll find them to be just that. And I also wanna say to you that you can secretly enjoy your first year of law school and enjoy law school in its entirety. Now, you don't wanna tell anyone that. They're gonna think...and
- In another case, the singer, actor Tom Waits was able to recover, and the judge in that case, said, "Well, his voice is very distinctive." The judge said, "It sounds like the voice of a person who's been awake for three days and three nights, drank a quart of bourbon, smoked a pack of cigarettes, and swallowed several razor blades," And that distinctiveness, all the compliments the judge threw out there, allowed recovery because someone was imitating and using their voice. So, when people listened to it, they thought it was Tom Waits, and he's saying, "Pay me. Give me money." It doesn't have to be a famous person. Most of the cases deal with famous people, but it doesn't have to be anyone, it could be you. Someone uses a picture of you to sell a product. You'll have a claim for commercial appropriation. Certainly, it could be me. Now, remember for this tort, there has to be a commercial use. It's only a commercial use that gives rise to the liability. So, if someone's name or...
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The Professional Standard of Care (Malpractice) 15 results (showing 5 best matches)
- The final standard of care for us to look at involves professionals and right off the bat, this is a challenge figuring out, well, who counts as a professional for purposes of negligence law and tort? We talk about, as laypeople, we think in terms of amateurs versus professionals and we define professionals quite broadly. For purposes of torts, the category of professionals is a much narrower one and to be a professional, you typically will have the highly specialized training, sophisticated knowledge that exceeds the ability of the jury to decide for themselves, which is why expert testimony becomes so important in professional negligence cases. And often, and typically, there's some self-regulating body that oversees the profession that has a code of ethics and there's this idea that the obligation of a professional is one of trust a fiduciary relationship where the obligation is to put the other person's interest above your own.
- We'll start by looking at medical malpractice because that's the way it is taught in most law schools and the key focus in most torts classes. Where you've got a medical professional, the standard of care requires that medical professional to possess and use that level of knowledge, skill, and training that is typically used by other medical professionals in the same practice area in the relevant geographic community. And this relevant geographic community generally is, some jurisdictions differ a bit, but the general rule is for specialists, we use a national standard. And for internists and general practitioners, we use the same or similar locality standard. We'll see that this matters because it will help focus on who can be an expert in these kinds of medical malpractice cases. But here, custom is everything.
- So with that, the most common categories of professionals, although it could be debatable, but typically we're talking about doctors. So it's most likely that in law school, most of the focus, if not exclusively, of professional negligence will be on medical malpractice and members of the medical profession. But we could be dealing with lawyers and in if you don't look at this torts, you look at this in a class of professional responsibility because let's face it, many more of us are going to be lawyers than doctors. So this seems more relevant to us, the professional negligence of lawyers. Also it applies to accountants, architects. So again, there's this specialized level of knowledge that's really complex. So the idea is that the jury doesn't have the ability to determine whether there was negligence in these cases. So we need expert testimony as a general proposition.
- So we've looked at the standard of care that applies to the reasonably prudent person, to the children, and statutory. And we've looked at the corresponding breach of duty. The standard of care is a reasonable person. Beach of duty is the lack of reasonable care or the burden is less than the probability times the magnitude of the harm. If it's a child, it's a combination of that's just the reasonable person standard and the analysis of breach that's corresponding, but with the subjective focus by including the child's own experience, intelligence, maturity, and age. And then where you've got a statutory standard of care. In the majority of jurisdictions, negligence per se jurisdictions, the statutes that the standard of care breach of duty is the violation of the statute. In some evidence jurisdictions, standard of care is a reasonable person and the violation of the statute is just evidence of the breach of duty.
- So assume that Dr. Doze is a board-certified anesthesiologist and she gets her patient, Poindexter, up after a procedure after three hours, and Poindexter is still feeling the effects of the anesthesia, falls and suffers injury. Poindexter sues Dr. Doze for medical malpractice claiming that it was medical malpractice to only let him rest for three hours as opposed to four hours. And he could prove that if he had had another hour to rest, he wouldn't have fallen. So therefore, that's the focus. The only expert evidence shows that anesthesiologists are part of specialists therefore, they're held to a national standard of care. So the national custom of anesthesiologists in good standing is to have patients rest for three hours after this type and amount of anesthesia. Therefore, Dr. Doze complied with the custom. Because she complied with the customary practice, she cannot be liable for medical malpractice.
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Wrongful Death 4 results
- What about death as an injury, as opposed to emotional distress? Is death an item of damage? And this can be a little confusing because there are two different concepts to keep in mind. One are survival statutes and survival actions brought under those survival statutes, and the other are wrongful death claims that are brought under wrongful death statutes. All jurisdictions have survival actions and survival statutes, and all jurisdictions have wrongful death statutes. And these are purely statutory. Under the English common law, tort law was really, really stupid. And if the defendant had the good fortune to off the plaintiff, that was the end of the action. The death of the plaintiff ended the tort action. So, you were way better off if you were going to be negligent, it was great to be so negligent that you killed your victim, because then you were off the hook legally. And there were no legal provisions that allowed survivors of the victim to sue you. So, you were off the hook....
- Pond has a survival action. Now, of course he's dead, so a lot of good it does him. But, it does a lot of good for his heirs because his legal claim becomes an asset of the estate. He amast medical expenses and lost wages and pain and suffering for the six months that he was in the hospital. And for those six months, those damages have a value and a representative of his estate can bring a claimant of the survival statute against the tort feaser, the person committing the tort, here Delbert. And Delbert is on the hook for that amount. Also, assume that the plaintiff was married and had a child. Well, Pond's spouse, Pond's kid can bring a wrongful death claim. They bring an action for their own injury, for what they lost. The monetary amount that they would have gotten had Delbert not negligently killed, their father, husband. And they get damages in most jurisdictions for loss of comfort and companionship as well. They recover for loss of comfort and companionship as well in most...and
- So, every American jurisdiction has a survival statute which provides that the victim's action continues after his death. And every jurisdiction has wrongful death statutes that say that surviving heirs, parents, siblings, children can bring an action for the injury that they themselves have suffered, for the harm they suffered due to the tortious death of the father, brother, son. So, you want to distinguish between survival actions. Survival actions belong to the victim, belong to the victim. And they become an asset of the estate. Where wrongful death actions are an action brought by the heir's based on statute. If Delbert is driving negligently, and collides into and severely injures Pond, Pond spends six months in a hospital, and then dies of the negligent, the inflicted injuries due to Delbert's negligent driving.
- And there's one other claim I want to mention here as well, a claim for loss of consortium. Loss of consortium is usually limited to spouses, but not always, but usually. And where a victim has been severely injured, but not dead yet, but severely injured due to the defendant's tortious conduct, a spouse can recover for loss of comfort and companionship and access to sexual relationships. So, while Pond was in the hospital for six months in agony due to Delbert's negligent driving, Pond's spouse could recover loss of consortium. Some jurisdictions have expanded consortium claims to children when their parents have been severely injured or allowed parents to recover loss of consortium when children severely injured, for loss of comfort and companionship and the like. But still most jurisdictions limit loss of consortium claims to spouses.
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The Unforeseeable Plaintiff 9 results (showing 5 best matches)
- That's how this Palsgraf rule works. But there's an exception because Palsgraf realized it could lead to some bad public policy. So, he creates some torts magic and proclaims that danger invites rescue. And under Cardozo's torts magic, rescuers, non-professional good deed doer rescuers, are gonna be treated as foreseeable. So, they will be owed a duty by the person whose negligence created the situation for them to rescue.
- The first category that we want to focus on, where duty is an issue, is where you have an unforeseeable plaintiff. You do not have a foreseeable plaintiff, but an unforeseeable plaintiff. And this brings us to what most consider to be the most famous torts case of all time. The case called Palsgraf. It is so important a case, or so famous of case, that we're gonna to talk about it now, and we're gonna talk about it in a later context when we talk about proximate cause as well.
- Because of Cardozo magic that danger invites rescue, we've got this rule that would say that, as a matter of policy, a duty will be owed by Deb to Paolo, and that Paolo will be able to recover in negligence against Deb as a foreseeable plaintiff because as a non-professional rescuer, we're gonna find that a duty is owed to him. So, this is sort of like torts magic. We've just proclaimed that, as a matter of policy, rescuers are foreseeable.
- Let me give you an example. Assume that Deb owns an ice cream parlor, and there's a counter at this ice cream parlor where there's a line of stools where people can sit and eat their ice cream. Zina buys her ice cream and she goes to the stool, the furthest away from the counter where you order and pay for the ice cream. Because Deb negligently maintained that stool, when Zina sits on the stool it falls off and Zina falls to the ground, breaks her arm. No question that a duty is owed to Zina. Because Zina is a foreseeable plaintiff based on the negligence of not maintaining the stool on which Zina sat.
- But here's the deal. In Palsgraf versus Long Island Railroad, this 42-year-old woman decides to take her daughter to the beach on one warm Sunday. And she is waiting the platform for a train. And 20 feet away, another train run by the Long Island Railroad is pulling out of the station. The employees of Long Island Railroad help this man get onto the train that's pulling out of the station, and in so doing, they dislodge a small newspaper wrapped package. It turns out that that package contained dynamite because it was some party that the guy was going to, and I guess it was not a party without dynamite.
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Proof of Negligence 18 results (showing 5 best matches)
- So once we've looked at what the relevant standard of care is in negligence and how we go about establishing the element of breach of duty, we wanna focus a bit on how, in fact, the plaintiff goes about proving breach of duty. And a fundamental concept of tort law is that the plaintiff has to prove each element of what we call the prime efficient case, the elements of the tort by what we call a preponderance of the evidence meaning, more likely than not. And we're gonna see that even when we speak in Latin that the happening of a bad result, the happening of an accident is not enough to establish breach of duty for negligence. The plaintiff either has to allege and prove specific unreasonable conduct or rely on this doctrine of circumstantial evidence that is called res ipsa loquitur and we'll talk about those now.
- Practice saying the word, res ipsa loquitur. My students all like to call it IRL and here's the last point about res ipsa loquitur, it only applies when we're talking about proving the element of breach of duty in negligence. It doesn't apply to any other torts and it doesn't even apply to any other negligence elements although we'll see it can help the plaintiff establish causation. But it really is about proving the element of breach of duty and negligence.
- The outer limit of res ipsa loquitur is explored in a very famous case called Ybarra v. Spangard that is covered in most tort courses. In Ybarra v. Spangard, what happened is the patient-plaintiff went into a hospital for an appendectomy. He was put under general anesthesia as is the proper custom for an appendectomy and after he came to after the surgery, he had extreme pain in his shoulder that just got worse and worse to the point that he lost the use of his arm. He sues a variety of people who were involved in the operation, his appendectomy that was performed on him. The first thing the defendants say is, "You don't have any allegation of what exactly happened. We have no specific allegation of negligent conduct that led to your shoulder injury." And the plaintiff says, "Well, res ipsa loquitur. I'm going to put on a medical expert who says that when a person goes into the hospital for an appendectomy and suffers a shoulder injury, it's usually the result of medical malpractice...
- So let's assume that daddy bakes a cherry pie and he leaves that cherry pie out to cool in the kitchen. He walks through the kitchen 20 minutes later and a hunk of that cherry pie is missing. And there are little red dots leading to 8-year-old Johnny's bedroom. And daddy goes into the bedroom and there's 8-year-old Johnny with his face all smeared in red, his fingers red, his lips red, his once white t-shirt now red. We didn't see Johnny chow on the cherry pie, but the condition of his shirt and his face, and the red dots leading to his room are very strong circumstantial evidence that allows us to draw a very strong and reasonable inference that Johnny chowed on that cherry pie. In the context of negligence, often there's evidence of the length of skid marks at the scene of an accident. And that's circumstantial evidence that allows one to infer the speed of the car and from that, one can then infer whether the defendant was driving unreasonably by speeding at the time of the...
- So what we need in slip and fall case is evidence that shows that the condition in which the plaintiff fell was there long enough that the defendant should have discovered that condition and should have repaired it. So everything changes if in her testimony on the stand Prudence says, "I fell on a grape which was blackened, smushed, and gritty." Because the condition of that grape being blackened, smushed, and gritty is circumstantial evidence from which the jury could if it wishes to find that that the grape was there long enough, that Dumbo's Supermarket should have discovered that condition and fixed it. So it becomes a matter of proof. Now, it doesn't mean the plaintiff has won. The jury might conclude because Dumbo will put on evidence of all the reasonable care it takes. So let's say it can show that it sweeps the produce aisle every 15 minutes and the jury says, "That's good enough. That's reasonable." Then they would rule in favor of Dumbo Supermarket. But the key is that...and
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Conversion 10 results (showing 5 best matches)
- So here lies are not so bad because it just sucks to be him, but that's how conversion works. And it can be again really quite subtle. So for property torts, be really careful about the intent of it when we're talking about trespass to land, trespass to channels and conversion.
- When that interference becomes really substantial, really significant trespass to chattels turns into a tort called conversion. Conversion is a more serious tort based on more serious harm.
- Again though intent is really subtle here because a person could be innocent and pure and still be liable for conversion just like they could be for trespass to chattels. So going back to Dino and Paul and the blue denim Levi jacket it's on his coat rack at the restaurant diner. Dino, reasonably believes the jacket is his when in fact it belongs to Paul. Dino leaves with that jacket and he is walking home carrying the jacket when there's a sudden gust of wind that blows the jacket out of Dino's hands into a sewer and the jacket is lost and forever destroyed.
- That would be a claim for conversion because Dino intended that the purpose to exercise dominion and control over that jacket where he took it to keep it not to return it. And, of course, he presumably and honestly believed it was his but he had the purpose to exercise and dominion and control. And when that jacket gets destroyed or lost permanently then that is a substantial interference with the plaintiff's personal property. And the plaintiff Paul will recover for conversion, he will get the damages would be here, the fair market value of the item, the personal property, here the blue denim Levi jacket at the time it was converted. That's the typical measure of damages, fair market value at the time the personal property is converted.
- Prissy owns a Ming vase and I always call them vases but when somehow when they're worth a $1 million and this vase is worth a $1 million it becomes a vase. So this is vase from the Ming Dynasty worth $1 million that Prissy owns. And one night Cruella, a burglar breaks into Prissy's home and steals the $1 million Ming vase. The next day Cruella sells that Ming vase for its fair market value of $1 million to Drake. Drake pays the fair market value of the $1 million which is what that vase is worth, and he honestly and reasonably believes that Cruella, is qualified to sell this vase or that it's Cruella's vase to sell.
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Vicarious Liability 10 results (showing 5 best matches)
- For vicarious liability and respondeat superior to apply, you need two things. One, is you need an employee, right? You need an employee who's acting tortiously, who's committing a tort...an employee. And second, that employee has to be acting within the scope of employment. The employee is acting within the scope of employment. Well, an employee is someone who is acting on behalf of the employer and subject to the employer's control, and we compare employees to independent contractors. When an independent contractor commits a tort, the person who hired the independent contractor is not vicariously liable. There is no respondeat superior. But, the person who hires the employee, also known as the employer, is vicariously liable through respondeat superior.
- Now, remember there can be direct liability as well. If the bar, who hired the bouncer who used too much force in ejecting a patron, failed to do reference checks or do adequate reference checks...and had they done so, those reference checks would have shown that the bouncer is prone to fits of violence, liability could be based on that, but that's not vicarious liability. That's not liability based on the negligence or even the intention of tort of the bouncer and based on the employment relationship, that liability being imposed vicariously. That's direct liability, where the person who hires should, reasonably, have done an adequate job of investigating this person's propensity towards violence before they put them in this position. So, make sure you distinguish direct liability from vicarious liability, and be aware that you could have both, right? The plaintiff, they often in fact, will assert negligent supervision, negligent hiring, which is direct liability, and vicarious...tort
- So for example, as a general rule, parents are not vicariously liable for the torts of their children. Parents are generally, in common law, not vicariously liable. Just by virtue of being a parent doesn't make you liable when your child goes out and is negligent or commits an intentional tort under the general common law provisions. Many jurisdictions have statutes that change this. So, if you have a devil child, you want to make sure you live in a state without one of those statutes that changes the common law.
- Okay. Let's talk for a little bit about vicarious liability. And with that, we're going to be pretty much done with the basics, and then we'll turn our attention to some other specific torts. "Vicarious" means through another. And so, vicarious liability arises in context where a person is liable in tort, not because of anything that they did wrong, not because of any fault on their own part, but because of their relationship to another person. That's not really strict liability in the sense that there is still fault in the equation. The person for whom they're responsible is at fault. But, they're, in essence, strictly liable, not because they did anything wrong, but simply because of their relationship to the tortfeasor.
- The most common context of vicarious liability is through the relationship of employer and employee. Respondeat superior is the term that you will often hear used in this context. That the employer through the doctrine of respondeat superior is vicariously liable for the negligent conduct of an employee committed within the scope of employment. This is a very well-accepted concept in American tort law. It explains a lot of the cases that you're looking at, that the defendant didn't do anything wrong, but they're the employer and they're being sued because of negligence of one of the employees.
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Injurious Falsehood 2 results
- Let me talk to you for just a minute or two about a related tort to defamation, which is called injurious falsehood. Injurious falsehood, which is basically business defamation. It's like defamation, but it is aimed at a business, and courts here typically require the plaintiff to show that the plaintiff suffered an economic loss due to the false statement that was negative and reputation harming, as to the business.
- I mention this because there's this one particularly good case to make a point of the reach of this tort. In this one case, I think it's called, Dicks versus Fenney [SP]. It's one of their earliest injurious falsehood cases. The defendant is drinking at the plaintiff's pub, and in those days, and this is taking place in England, of course, where all this stuff started. And so, the defendant is drinking in the plaintiff's pub, and in those days each pub made it's own beer, right, they all had their own beer. I think we're kind of moving back to this now. It probably wasn't as trendy then. So, the defendant is at the plaintiff's pub, and the defendant takes a drink of the beer made by the plaintiff, and then spits it out, and loudly says as he spits it out, "I could feed some malt to my horse and she'd piss a better beer than this."
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Duty - General Duty Rule 4 results
- So, let's look at these extraordinary categories where duty is an issue, and then we'll move on to the other elements of negligence, cause in fact, and approximate cause, which it turns out are elements of other torts as well.
- One situation is where there's an unforeseeable plaintiff. You do not have a foreseeable plaintiff. You have an unforeseeable plaintiff. Another is where the injury suffered by the plaintiff is something other than personal injury or property damage. And in those situations, which we will look at later in the lecture, duty will be an issue. For example, we have emotional distress or economic loss. Third is going to be where, instead of having affirmative risk creating conduct or misfeasance, you've got something we call nonfeasance, which is the failure to intervene to confer a benefit on the plaintiff. And then, finally, we've got certain categories where duty and negligence is an issue because of who the defendant is. The defendant is a governmental entity, the defendant is a land possessor or a landlord, a utility, in those situations, there's special duty rules that apply.
- The idea of affirmative risk creating conduct is what we call misfeasance, and includes a negligent omission, which is the failure to do something that creates risk of harm to others. So, shooting off a gun in the center of a city at lunchtime is affirmative risk creating conduct. But, so is failing to stop at a stop sign. That's a negligent omission and failing to stop at a stop sign is risk creating conduct. In either of those situations, a duty will be owed to any foreseeable plaintiff. This is the general rule that applies, but you will likely spend substantial time looking at the exceptional circumstances.
- Up to this point, we've been assuming that a duty is owed in all the negligence cases we've been looking at. And it's that time when I think we need to confront the element of duty. The good news is, most of the time, duty is not a big hurdle for the plaintiff or a big issue in a negligence case, because duty looks at whether the law imposes some legal obligation from the defendant to the plaintiff. In my mind, it's a yes or no question. Is there some obligation owing from the defendant to the plaintiff to act in some manner other than purely arbitrarily? And again, most of the time, the answer is going to be yes. The general duty rule provides that where the defendant engages in affirmative risk creating conduct, at least to personal injury or property damage, a duty is owed to any foreseeable plaintiffs. Again, this is going to be the default rule, the rule that applies most of the time in negligence, which will tell you where it applies that duty is not going to be a significant...
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The Child Standard of Care 4 results
- The one last point I want to make on this is, there's an argument that American tort law is not keeping pace with science. Modern science shows that the brain development especially in males, the part of the brain that assesses risk is not fully formed until age 30. So this may explain why some of you do the things you do. The bad news is for purposes of tort law on one's 18th birthday, they no longer will be held to the child standard of care. And upon turning 18, the standard of care becomes the objective reasonably put in person under same or similar circumstances.
- The next standard of care is one that applies to children. And all jurisdictions agree that children should not be expected to behave as grown-ups. We cut children a break because we know that they don't have the same maturity and judgment brain development that adults are expected to have. So, where you've got a child and we're analyzing the negligence of the child. The overwhelming majority rule is something like the standard of care of a reasonable child of the same age, experience, intelligence and maturity. Something...They vary some in the actual words but it's very similar, it would be very similar to that if a reasonable child at the same age experience, intelligence and maturity. This is an objective and subjective standard of care. But it's much more subjective than the standard of care we would apply to adults, that reasonable person standard. For adults, we don't care about their level of intelligence or their experience or their maturity or even their age, but for...
- Where they may make a difference would be something like hunting. Hunting with guns are inherently dangerous. So, if a child is hunting, it seems to me clear that it's inherently dangerous. But whether it's an adult activity, I think varies very much about where in the country this is taking place. And in some parts of the country hunting would not be an adult activity. And therefore, the child would be held to the child standard of care in a hunting accident if the jurisdiction has a special standard of care for children, and an exception only for adult activities. So first, we wanna apply the child-centered care and then ask ourselves does one of these exceptions apply? Inherently dangerous or adult activity if that exception applies? That that 11-year old Delilah is driving a car or riding a snowmobile, she's gonna be held to the adult standard of care even though she's 11 years old.
- ...we wanna look much more at the child as an individual. There's an exception, however, where the child is engaged in either an adult activity or an inherently dangerous activity. Jurisdictions are split over which exception they use, but all agree that in certain situations even for a young child, we're not gonna give them the benefit of the child standard of care, if the child is engaged in an inherently dangerous activity, some jurisdictions or others, an adult activity. Now, most of the time this distinction doesn't matter because you get to the same place. If the child is driving a car, that child is gonna be held to the standard of care of an adult. Even though it's their first time driving, we don't care. They're expected to rise to the minimum acceptable level of driving because driving a car is inherently dangerous. And something's generally done by adults. Therefore, basically driving any motorized vehicles, snowmobiles, motorcycles, even motor scooters would likely...
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Shopkeeper's Privilege 2 results
- The next defense of privilege I'd like to mention is called "shopkeeper's privilege". And it arises primarily in the context of false imprisonment claims. But, it also can deal with battery and assault as we'll see as well. At common law, if you were just a citizen, you weren't a member of law enforcement, and you made a citizen's arrest, because you honestly and reasonably believed somebody committed a crime, and in so doing, you committed battery and assault and false imprisonment for it, let's say. If you were wrong, you were liable for those intentional torts. If you were correct, then you would not be. So, it really put private citizens in a precarious situation, especially business owners. If you ran a business and you suspected somebody of shoplifting, you were in this uncomfortable position of trying to decide whether to detain them. Because if you detain them and you were correct that they, in fact, had stolen something, then you're fine. You're not liable for any intentional
- On one warm day, Drug Co., a large drug store, there's an undercover detective who works for Drug Co., and sees Parker wearing a heavy coat, even though it's a warm day, with large pockets. And the detective believes that he has seen Parker put something into his coat pocket. So, the detective approaches Parker and says, "I need you to come with me. I think you've been shoplifting. I'm going to call the police." And he grabs Parker by the arm, walks him to a back room, locks him in a back room, calls the police, the police show up 20 minutes later and conclude that Parker had in fact not stolen anything. Parker sues for battery assault, false imprisonment and will lose, because of the shopkeeper's privilege. But, let's assume that the employee of Drug Co. forgets that he had locked Parker in that back room and keeps him there for four hours. Or that the undercover detective goes to that back room with a taser and starts tasering Parker in his genitals trying to extract some sort of...
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Strict Liability 13 results (showing 5 best matches)
- Hammontree's argument, in that case, was he should have to pay anyway because he caused the harm. In that very interesting case, the court concludes, as virtually every American court would, that Jenner is off the hook of liability. He does not have to pay, no matter how rich he is, and no matter how badly hurt Miss Hammontree is. It simply doesn't matter because there's no fault. And that for a lot of policy reasons to promote development, to promote people doing things like taking risk which we think is a good thing, we're only going to impose a liability upon proof of fault, intentional or wrongdoing, recklessness, unreasonable conduct, also known as negligence. But there's a few places in American tort law where we impose liability, absent proof of fault. There are three situations, the key three strict liability contexts for American tort law. The first deals with animals, the second deals with abnormally dangerous activities, and the third concerns defective products.
- Our next focus is on those situations where the plaintiff can recover damages absence proof of fault, strict liability, where the plaintiff recovers without having to prove either intentional or wrongdoing or recklessness or negligence on the part of the defendant. Okay, let's look a little bit now at strict liability, also known as liability without fault. Remember that in American tort law, strict liability is very much the exception. Thought-based liability is the norm. Some of you may have begun your journey through the study of torts by looking at the case of Hammontree versus Jenner. In that case, Mr. Jenner is an epileptic who is driving his car, has a seizure and injures Miss Hammontree. The facts tell you that he took anti-epilepsy medication that day. He had gone years without a seizure. He was under doctor's care and was driving pursuant to permission from the DMV, the Department of Motor Vehicles. Basically, he totally wasn't at fault.
- Now, that is what we call some serious strict liability. In modern American tort law, we don't kill you if your domestic pet injures someone. But the rule is similar to the one "The Old Testament" just laid out, which is if someone has a domestic animal, they are not strictly liable unless they know or should know of the animal's dangerous propensity. So, if I have a pet goat, my goat is allowed to gore someone or try to chase someone once. But once I know that my goat likes to chase people and try to butt them, then I'm on notice. And if my goat does that, I'm liable for the harm that's caused. Sometimes you'll hear this expression that every dog gets one free bite, the one-free-bite rule. We talk about that sometimes in this context of strict liability in torts for domestic animals. But if you think about that it's not truly accurate.
- The second category of strict liability involves dangerous substances or abnormally dangerous activities. There was an effort to try to come up with some sort of coherent theory of strict liability. At the same time that jurisdictions were adopting a fourth principle requiring proof of negligence, or recklessness, or intentional wrongdoing. But there were still gonna be these pockets of strict liability like for wild animals. Well, the most famous case here and one that some of you no doubt looked at is Rylands versus Fletcher. This is just a wonderful case for law professors to torture law students. And what happens in Rylands versus Fletcher is the defendant decides to build a mill in a part of England that had been a mining area that had been primarily used for mining. So, he wants to build this mill and to do that he needs to have a reservoir of water to bring this water onto his land to operate the mill. So, he brings all this water on to the land. And through no fault of his...
- Let's talk about the first two now and we'll hold the complex discussion about product liability for a little while. And let's start by looking at animals. The rule here is quite simple. If the defendant has a wild animal, a lion, a tiger, a chimpanzee, has a wild animal, and that animal injures the plaintiff based on the animal's dangerous nature, what makes it wild, the plaintiff is injured can recover without proof of fault. So, if Devana has a pet lion and she's had the lion ever since the lion was a little cub, it has never, ever acted out. It purrs usually when you pet, cuddles up in your lap, licks your face. But on this one occasion, Devana's pet lion claws and injures Pava, and Pava sues Devana. Pava does not have to proof fault because part of a lion's nature, what makes them dangerous is they bite and they claw. And this would be a situation of strict liability, no requirement of proof of fault. The only limitation is that you still have cause, in fact, in proximate cause...
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Nonfeasance, cont'd 13 results (showing 5 best matches)
- Are there exceptions? It's tort, so of course there are. And the exceptions involve the context where the defendant has some level of control and takes charge of this individual who they know or should know is imposing some level of risk on others. But, there needs to be this sort of special relationship based on the ability to control and knowledge of the third party's dangerousness before the courts will impose legal obligation or duty in this context. Let me explain a very straightforward example, and there's cases like this.
- The second category of nonfeasance involves what we call duty to control or warn. Again, this falls into the category of nonfeasance. Its falls into the category of nonfeasance because the plaintiff is saying that the defendant should have intervened and given a benefit, such as a warning to the plaintiff. And again, there's no obligation to do so unless an exception applies, the restatement of torts as an example, where the defendant is standing next to the plaintiff. The plaintiff is obviously blind and the defendant sees that the blind plaintiff is about to walk into the street, even though there's an oncoming car. The defendant easily could have taken hold of the plaintiff's arm or spoken up and said, "Don't walk into the street now, because there's an oncoming car." The defendant does not do so, does not give that warning. The plaintiff walks into the street and gets hit by the car and sues the defendant saying, "You should have warned me about the risk." A motion to dismiss...
- Where you likely saw this on law school or will see this is in a very famous case, called Tarasoff. And what happened in the Tarasoff case is that an outpatient was seeking therapy from a therapist that worked for the University of California. In that therapy, this patient, Poddar, told the therapist that he wanted to kill Tatiana Tarasoff. And what ultimately happens is that Poddar does kill Tatiana Tarasoff. And Tatiana Tarasoff's parents sue the University of California, the employer of the therapist and says, "You should have warned us about this danger and these threats that were being made against our daughter." First thing I want to point out is the first reaction to this is that it's not going to be a very powerful claim on the part of Tatiana Tarasoff's parents because this is nonfeasance, and they are saying to the defendant, "You should have intervened and provided us a warning." And because it's nonfeasance, there generally would be no obligation to do so.
- The last category of nonfeasance is duty to protect. And this is very controversial because in these cases, the plaintiff is suing the defendant. Now again, it's not the person who caused the wrecked harm, the baddest...is that a word, the worst of the actors in the scenario. But they're assuming the defendant's saying, "You should have intervened to protect me against third-party criminal conduct." That's what the claim is in these duty-to-protect cases. "Defendant, you should have intervened to protect me from third-party criminal conduct." And in these situations, because it's nonfeasance, we start with the idea that there's no duty. Add to that the public policy considerations of whether we should be shifting on private enterprise, obligations to protect against criminal conduct when that is something that we typically leave to law enforcement. Now, courts all agree that at some point, there is a duty to protect against third-party criminal conduct. And that the first step is...and
- A prison negligently allows a murderer who has been in prison there to escape. They have an obligation to warn those in the vicinity that a murderer has escaped from their facility. They have taken charge, control of that murderer and they know of that murderer's dangerousness. They have an obligation to foreseeable third persons, to warn them about particular danger. Or another example, let's assume that Devorah has an 8-year-old child who I intentionally will name, Dameon. And Dameon has a habit of trying to stab babysitters to death. So, when Devorah hires Paula to babysit, Devorah might say, "Well, you know what? I'm going to pay you the going rate. I've stocked the refrigerator. Anything in there that you want to eat, please help yourself. We've got full cable, any stations you want to watch. Oh, and by the way, you probably want to be careful tonight and not turn your back on Dameon, because at some point tonight, it's likely that he's going to try to stab you to death." There...
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Defenses 30 results (showing 5 best matches)
- Implied assumption of the risk arises where basically consent is manifested by the conduct of the plaintiff. It's sort of an analogy to the consent defense in intentional torts. The focus here is different than in contributory negligence in comparative fault. Contributory negligence in comparative fault have an objective focus, looking at whether the plaintiff acted reasonably or not, and if the plaintiff failed to act reasonably, that's comparative fault or contributory negligence.
- There's another context, a related context where we've got professional rescuers, which is sometimes called the firefighter rule. It's better called the professional rescue rule because it's gonna deal with professional rescuers that are firefighters, police officers, EMTs, emergency medical technicians, in those contexts where someone's a job is to come to the aid of another, to rescue another. Even if they're not paid, even if they're a volunteer firefighter, the rule that we saw earlier that I called torts magic by Judge Cardoza who said that good deed doers are always foreseeable as a matter of policy. And these good deed doers can recover in negligence against the person whose negligence created the good deed doer to do the job, to intervene, to assist. And if that good deed doer gets injured in affecting the rescue, the negligent party who created the situation for rescue has to pay.
- Now that we've looked at the prima facie cases of negligence and strict liability, it's appropriate to think about affirmative defenses. And by affirmative defenses, I mean those arguments on which the burden of proof shifts to the defendant to prove the relevant elements. The affirmative defenses I wanna talk to you about are, first, contributory negligence and comparative fault, contributory negligence and comparative fault, and as I'll explain, the elements are the same for those. And then second, the defense called assumption of the risk, assumption of the risk. So let's first look at contributory negligence comparative fault.
- After the plaintiff has established that the defendant owed a duty and breached that duty, and the defendant's negligence was a cause-in-fact and proximate cause of the plaintiff's cognizable injury, the defendant can try to put on evidence to show that the plaintiff engaged in unreasonable conduct. And that unreasonable conduct contributed to the plaintiff's harm as well. The elements here are that we start by looking, well, what's the standard of care? It's usually the reasonable person. And the defendant proves that the plaintiff fell below the reasonable person standard of care, or statutory standard of care, or child standard of care, and then that breach of duty was a cause-in-fact and approximate cause of the plaintiff's injuries.
- So go into some depth and analyze, did the plaintiff act unreasonably in contributing to her own harm? That's the crux, the analysis. The effect is secondary and easy, easy to explain. So assuming we've established that the plaintiff engaged unreasonable conduct, as well as the defendant, and that the plaintiff's unreasonable conduct contributed to the plaintiff's harm. So the defendant is speeding and turns a corner going too fast. But the plaintiff is jaywalking rather than crossing at the appropriate place, the plaintiff is jaywalking. So both of them are negligent. And both are contributing to the plaintiff's injury.
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Abuse of Process 4 results
- Next, let's talk a little bit, very briefly, about abuse of process. This is a related tort, talking about misuse of the judicial process. And if it sounds a bit vague, that's because it is.
- And so, really when you look behind this, the idea was to make it extremely expensive for the school district to have to hire substitute teachers to cover all the classes that were being given that day, to put financial pressure on the school district. So, even though subpoenas are a legitimate purpose often, here it was found that the teachers' association acted for an illegitimate purpose and abused for the process, and was thus liable for damages for the tort of abuse of process.
- It's this abusive process, generally defined as, "misusing a legitimate process of the court for an illegitimate or improper purpose." One famous case that I think serves to give you a flavor or what abusive process is all about. It's Farmingdale Teachers is the case. In this case, there's a lawsuit going on between a school district and a teachers' association about their contract and how much, of course, money that the teachers were supposed to get. On the first day of trial the teachers' association subpoenas every teacher in the school district to be in court, claiming that they need to be available to serve as witnesses.
- The lawyers have the right to subpoena people to compel them to appear in court in a particular case. An attorney's an officer of the court with the power, then, to issue these subpoenas. It was okay to issue the subpoenas. But here in this case, the teachers' association knew very well that there was no way in the world that the hundreds of teachers that they subpoenaed could possibly testify on the same day. And also, they knew that no court was gonna allow them all to testify, because the testimony would be repetitive. It would be duplicative.
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Malicious Prosecution 6 results (showing 5 best matches)
- Next, let's look at a few torts involving the misuse of the judicial process or judicial procedure. The first of these is known as malicious prosecution. It's touched on in some torts classes and malicious prosecution can be defined in terms of four or five elements depending on the jurisdiction. In nomenclature some kinds can get sort of messy here, but generally we're gonna to talk in terms of malicious prosecution. And as you know, the person who is suing is called the plaintiff. We've established that long ago, no doubt, but in this context it can get kind of confusing. So as a general proposition, especially even on an exam, it's wise to use the names of the parties because when they're suing and they're countersuing, and there may be some actions for which one is a plaintiff and then the other, a defendant, it might make the most sense to just use the party's names in an exam. And so, here, I might talk about the injured party being the victim in a malicious prosecution case....
- But to give you an idea of what we're talking about for malicious prosecution, let's assume that Dirk and Penny have been dating for a period of time. And the very night that Dirk is planning on proposing to his longtime girlfriend, Penny, he picks a nice restaurant and was in a really excited, and a really happy mood. And they go out to this restaurant with Dirk intending to propose to Penny. But before Dirk can get there, Penny says, "You know, Dirk, I have something I really want to talk to you about. This, you know, relationship really just isn't going right and, you know, I've been actually starting to date your best friend. So I think it's best that we end the relationship." So Dirk is one unhappy camper, right? Dirk is really, really angry. And the next day in the newspaper, he reads about a string of bank robberies in the town in which he and Penny live. Dirk calls the police, tells the police knowing it's completely untrue, that he knows who is the bank robber and that it's...
- The third element is lack of probable cause, lack of probable cause. You're not supposed to bring a proceeding against someone unless you sincerely and reasonably believe that the person should be prosecuted or sued. That's sincere and reasonable belief is what we call probable cause. Probable cause has both the subjective and an objective component. The requirement of a sincere belief is subjective. The person who brings the underlying claim has to truly sincerely believe that there's a basis and that it might succeed. And the reasonable belief requirement is objective. It means that there's facts that would lead a reasonable person in this situation and the context of the person instituting the underlying action to believe that there's a valid basis as well. And even if the first three elements are satisfied, even the person sued you in a judicial proceeding or had a judicial proceeding instituted against you, criminal or civil, and is a termination on the merits which you prevail...
- So with that in mind, let me just review quickly for you what we mean by these elements of malicious prosecution. First, we started with this idea, you need the institution or continuation of a judicial proceeding, a judicial proceeding against the victim. So there's cases for example, in one case these two radio stations are battling it out. They're fighting over some wave length rights and they have a proceeding before the FCC, a government agency that deals with the broadcast rights. And a malicious prosecution action was brought by the person who didn't get what they wanted to hear. And the court says, "You know what? This is not the right kind of context. This is not a judicial proceeding. This is just an administrative hearing." Or in another case there was a debate before the police department's disciplinary agency and again the court said, "This is not a basis for malicious prosecution." You really should be looking for the situation where somebody is dragged into court and...
- The other key aspect here is that you need a termination on the merits in favor of the person who's bringing the wrongful...the malicious prosecution claim, the authority who says that they were wrong. They have to prevail on the merits. So you can't bring a malicious prosecution action just because you're grumpy if the case gets dismissed before it's resolved on the merits. So in the example a bit ago with Dirk and Penny, if the district attorney investigates and decides not to bring charges, decides that there's not enough evidence to try Penny on the merits, there's no malicious prosecution claim there, because you need again a termination of the proceeding on the merits in favor of the person, the victim, the person who's gonna bring the malicious prosecution claim.
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Cause in Fact 28 results (showing 5 best matches)
- The next element of negligence which is an element of all torts actually is the element called cause in fact or actual cause, sometimes called factual cause. But this is the element that when you were like a normal person and somebody asked you what we meant by causation? You would think in terms of cause in fact because this element is the connection between the defendant's tortious conduct and the plaintiff's injury. So in negligence, cause in fact is the tie between the defendant's unreasonable conduct and the plaintiff's damages.
- If Parthenon sues Abel and Baker under the but-for test, Abel would say, "You can't show but-for my negligently set fire your house wouldn't burn down, Parthenon because Baker's fire would have burned it down and vice versa." And so because of the alogic of letting these negligent defendants get off the hook, courts will use a substantial factor test there and say that Abel and Baker each were a substantial factor, their negligently set fires were a substantial factor into the destruction of Parthenon's home. You'll see this again in a few moments what the effect of that might be.
- So, in this case, the defendants clearly were negligent per se. If you wanna practice, you can think about why the statute would set the standard of care, whether the plaintiffs in the protected class, this is the type of harm designed to be protected and so forth. But even if you have negligence per se because the defendants violated the statute that required reasonable barricades around the hole in the ice, what happened factually was that there was an explosion and the plaintiff's horse totally freaked out and started running wildly and fell into, if I can be so bold, the ice hole. When this horse fell into the ice hole, the horse drowned the plaintiff said, "You caused me property damage." The purpose of the statute was to protect property, the owners of property who are having their property destroyed when it falls into the hole in the ice. As well as possible other reasons and I think it's a valid argument.
- So in one case it was the City of Rochester, negligently allowed water lines in a part of the city to get mixed. And so for a while in that part of the city, the drinking water was going down the sewer and the sewage water was coming out of the faucet. Yuck. And so the plaintiff contracts typhoid. His name is Stubbs, Mr. Stubbs. And Stubbs sues the City of Rochester, for their negligence. The City of Rochester says, "There are a dozen ways a person can contract typhoid, therefore, this case should be thrown out." But what the court correctly said was the case should go to the jury for them to decide whether the plaintiff could establish more likely than not but-for the negligence of the city of mixing those two water lines the plaintiff would not have contracted typhoid. So again cause in fact is the usual test and be specific so you don't miss whether you have a cause in fact issue.
- In a little bit I'll talk about this more in the context of joint and several liability but for now, I wanna underscore the context. So if you've got a situation where Abel negligently set a fire and that fire alone will burn down Parthenon's house. Baker negligently sets a fire, that fire also alone would destroy Parthenon's house. They combine and Parthenon's house burns down.
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Proximate Cause 20 results (showing 5 best matches)
- The next element we're gonna look at is one that strikes terror in the hearts of many law students, and I think unnecessarily so, is the element that's generally known as proximate cause. Now, the third restatement of torts somewhat recently has renamed this element to scope of liability and that's a much more accurate name. Scope of liability is much more descriptive about the role of this element because proximate cause is designed to limit the scope of liability in situations where even though a duty is owed and the duty has been breached, and even though there's cause in fact, there's some reason to limit the defendant's responsibility, to limit the scope of liability. The problem is that many judges and others, including professors might not even know what you're talking about if you call it scope of liability. So most casebooks call this element proximate cause, and I'll refer interchangeably to this element as proximate cause and scope of liability.
- Is there a duty owed? Absolutely. The Defendant Della engaged in affirmative risk creating conduct that led to property damage and clearly the plaintiff is a foreseeable plaintiff. It's her home, her property. Did Della act unreasonably? Absolutely. Standard of care would be unreasonably put in person under the same or similar circumstances and clearly, Della acted unreasonably. The burden of placing the rat poison somewhere other than with the spices by the stove is far less than the probability of harm times likely, magnitude of that injury. Cause, in fact, slam dunk. But for Della leaving the rat poison, mixed in with the spices next to the stove, the plaintiff's chandelier would not have suffered $10,000 of damage. So cause in fact is slam dunk, non-debatable, easy for the plaintiff to prove. How much will the plaintiff recover? Zero. Because the plaintiff will not be able to prove cause in fact. If foreseeable type of harm based on the unreasonable conduct of leaving spices or...
- Let's go back to the Derdiarian case, back to the actual facts. So let's assume under the actual facts that Dickens is the negligent driver who failed to take her anti-epilepsy medication and Felix was negligent because they failed to have a flagger and a barricade. Felix suffers $100,000 of damage from the car collision when Dickens runs into him, when she has her epileptic seizure. Dickens and Felix would be jointly and severally liable for that $100,000. Felix was negligent and abut for a cause and Dickens was negligent and abut for case. They contributed to the indivisible injury of $100,000 and they're jointly and severally liable. So assume now that what happens is that the injured plaintiff, Derdiarian is whisked to the closest hospital, general hospital. He's taken to the emergency room, on call... And this is never a good thing. So if this ever happens to you, no matter how injured you are, try to get out. Over the loudspeaker, "Paging Dr. Doom, Dr. Doom to the emergency...and
- Derdiarian is a worker and he's working construction, road construction. And he's working for an employer named, Felix. There is a law in the jurisdiction that it's a worker safety statute that requires the use of flaggers and barricades to protect workers dealing with construction on the road. Felix, the defendant, fails to have a flagger, fails to put up a barricade. This driver named, Dickens, comes by the work site and has an epileptic seizure. She failed to take her epilepsy medication that morning. She was negligent. A reasonable person would take their medication. She negligently failed to take her medication. So at the very moment, she's passing the work site, she has an epileptic seizure. She loses control of her car. It careens onto the work site and collides into, and severely injures the Plaintiff Derdiarian. He sues Felix for their negligence of not having a flagger and a barricade. And he could show that they owe him a duty that there was a negligent omission that...
- So the question is what about the negligent driver, Dickens, and what about Felix? Are they responsible in addition to the $100,000 for that additional $20,000 of damage? And the answer is typically, yes. That medical malpractice is just negligence. Negligence is not so culpable that it's highly unforeseeable. Therefore, that subsequent aggravation is going to be something for which all three defendants are jointly and severally liable for that additional $20,000 of harm. Now, at some point, enough time would go by, or distance that we would cut off liability using this idea of Andrew's rough sense of justice. But in a situation like this, it's so causally connected that the plaintiff is in the emergency room because of the negligence of those two defendants. Very little time has gone by, they would all be jointly and severally liable. But if instead, Dr. Doom comes into the operating room and she picks up Derderian's chart and she says, "Oh, I remember this guy. The last time I saw...
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Defense of Others 2 results
- The related defense is defense of others or defense of third persons. And here is a split of them which is gonna be common, we're gonna look at in various ways how different jurisdictions may do things differently. Often in your torts class, your exam is set in a mythical jurisdiction or an unstated jurisdiction to give you the opportunity to focus on these different splits. So, for defense of third persons or defense of others, the defendant is able to assert that defense generally where that defendant honestly and reasonably believed the force used was necessary and it was proportionate. So, if Igor a classmate over her the dispute between Paula and Donna. And Igor sees Donna about to get into her car and Donna doesn't notice that Paula is walking toward her with what looks to be a rock.
- So, Igor from across the street picks up a rock and he hurls at across the street and hits Paula in the head with that rock and Paula sues Igor for battery and assault. He could assert and would assert successfully defense of others, defense of third persons because he had an honest and reasonable belief that Donna was at risk of imminent harm and responded with proportionate force. He also in a minority of jurisdictions would be able to assert this defense of others because he stands in the shoes in those jurisdictions of the intended victim. And because Donna would have been able to assert self-defense, he's able to assert defense of others. A related defense and one that involves...I haven't mentioned a lot of case names because many of you use a variety of different case books, there's a lot of cases one can use to express certain tort principles. But there are some gems, some cases that are extremely famous and commonly used. And one is the case of Katco versus Briny which...
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Government Defendants 7 results (showing 5 best matches)
- But instead, assume that Small Town has decided it's going to put up a stop sign at this dangerous intersection. It allocates the resources and they make that policy determination. And the employee for Small Town shows up and puts the stop sign up backwards. That's a ministerial function. A duty would be owed just like in any other case, and the plaintiff would recover upon proving the other elements of negligence. Where this most often comes up in law school in the tort's course is in what's called the public duty doctrine, where the plaintiff is suing the police or fire department for not doing their job adequately. And courts, where there's no exception that applies, will not find a duty and simply say, "We are not gonna tell the fire department how to do its job. We're not gonna tell the police how to do their job."
- Let me give you an example that hopefully will clarify this. Let's assume Panon gets injured at an intersection in Small Town. And Panon shows that there had been eight car collisions that year at the same intersection. So, Panon Smoke sues Small Town saying that it was negligent of Small Town not to install a traffic light or a stop sign at this intersection. That would be a discretionary function and the court would grant a motion to dismiss and throw this out saying, it takes resource allocation. It's a matter of policy where Small Town decides it's gonna put stop lights and stop signs. It affects traffic flow. It's a matter of policy, and there's a financial cost that the court will say, "This is a discretionary function. Motion to dismiss granted."
- The distinction is between what are called discretionary functions and ministerial functions. The name "discretionary" gives us a clue what we're talking about, meaning that there's discretion, judgment, planning, and resource allocation. And there, due to separation of powers, the courts won't tell the government entity how to do its job, how to set its policies and allocate its limited resources. As opposed to ministerial functions where the governmental entity has already determined that it's gonna allocate these resources, the policy has been set, yet they, to use a legal term, screw up. The governmental entity just messes up. There, there is no special protection.
- The most famous case here, I think, is a case called Ritz versus the City of New York. It was a basis for a movie or documentary, called "Crazy Love," that I'll talk about it in a moment. What happens in this case, is this lawyer named Pugach... And now should I say ex-lawyer? This lawyer named Pugach is engaged to marry Linda Riss. She calls off the engagement. Pugach does not deal with it well and starts threatening her if she does not come back to him. Linda Riss calls the New York plaintiff police and says, "I'm getting these death threats, threats of serious harm. I need you to protect me from potential harm." The police do nothing. And a hitman throws lye in Linda Riss's face in which she is badly disfigured, blinded in one eye, and partially blinded in the other.
- Second, is where the defendant is a governmental entity, a state, county, a commission that is a state or city commission. .And we've got a governmental entity. We used to have blanket immunity for negligence liability. But starting in the middle of the last century and through to the 1950s or so, we started looking at this through the lens of negligence duty. But we ask ourselves, "What's the government entity doing?" Because if the government entity is doing something that is typically done by private enterprise, we call that a proprietary function.
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Cause in Fact, cont'd 9 results (showing 5 best matches)
- In addition to being highly unforeseeable, freakish, and bizarre, it's highly culpable. It's intervening criminal conduct, which can often be superseding. No, it's not always gonna be superseding. You can have foreseeable criminal conduct that, in one case that's often a note in tort books. A railroad negligently skipped a stop for a female passenger, and they let her off at the next stop, knowing she was gonna have to go walk through a very dangerous area to get home. And she was assaulted, walking through that area on her way home. And the court said, "That's third party criminal conduct, even though it's highly culpable, is not superseding. Because it's foreseeable and it's a risk you created, railroad, through your negligent conduct."
- A case you might look at is Derdiarian versus Felix Contracting, a New York case. I'm gonna lay out the facts and then I'm gonna change the facts some to make a variety of points regarding manner of harm for proximate cause. In the Derdiarian case, Derdiarian was working on repaving a road, a construction. And there were worker safety statutes that required that there be two flaggers and a secure barricade to prevent cars from coming onto the worksite and injuring the workers. Felix Contracting, the employer for Derdiarian, the plaintiff, violated those worker safety statutes. There was no secure barricade, there were no flaggers. In the actual case, what happens is there is this driver named Dickens, and she, that morning, negligently failed to take her anti-epilepsy medicine. At the very moment she is passing the work site, she has an epileptic seizure, loses control of her car, which careens onto the work site, and collides into and injures the plaintiff Derdiarian. He sues Felix...
- What the court said was, "Dickens was negligent. A reasonable person would take their anti-epilepsy medication. She failed to do so in the morning. And yeah, she was negligent. But a jury could easily find, given the nature of the defendant, Felix's negligence, that it was foreseeable that a negligent driver would come onto the work site if there were not flaggers and a barricade, and injure a worker." And therefore, at least it's a jury question, and ultimately unlikely, that the epileptic driver is gonna be superseding. What might be superseding? Well, assume that instead of being the epileptic driver, Dickens is the ex-wife of Derdiarian. And she's driving by the work site and she sees Derdiarian with his back to her. And they'd just gone through a really nasty child custody dispute, and she says, "Today is a good day for that SOB to die." So, she floors the car and collides into Derdiarian, causing him serious injury. That would be a superseding cause.
- Now, clearly, Derdiarian can sue Dr. Doom for the $50,000 of damages she created through her medical malpractice. The question is would Dickens, the negligent driver, and Felix, the negligent employer, also be liable, along with Dr. Doom, for that additional $50,000 of damage? And the answer's going to be yes, because the defendant's conduct is not so culpable and unforeseeable that it cuts off liability. If, on the other hand, Dr. Doom comes into the emergency room and looks at the chart and the name and says, "Oh, I remember this guy. Derdiarian. Yeah. He was my date at the senior prom in high school, where he left me standing there, as he exited with my best friend." And she picks up a hatchet and she cuts off his foot, causing $50,000 of damage. Only Dr. Doom will be liable for the additional $50,000 of damage. It's so unforeseeable, culpable, that it would be only her responsibility, and Dickens and Felix would not have to pay for that additional harm.
- So, Petey gets the blasting cap. It explodes and Petey suffers severe injuries. Petey sues Dunco, the construction company that negligently let that blasting cap remain at the work site. The court said that even though there was a duty which was breached, and there was cause in fact, and that this was exactly the type of harm one could see resulting from leaving a blasting cap, someone could be injured by explosions. What the court said was that the risk terminated when the mother saw her kid had this blasting cap. And when she failed to take that blasting cap away from her child, this was so culpable and unforeseeable that it cut off the liability of Dunco. Not very common to see this termination of risk idea. Much more common is to think about whether there's an intervening force that's so culpable and freakish and bizarre that it constitutes a superseding cause.
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Wrongful Conception 5 results
- The most controversial of all is a wrongful life claim. A wrongful life claim is the child's claim, saying that my injury was being born. As you might imagine, this totally freaks out courts. I mean, you have to be a philosophy major, right, to figure out if non-existence is somehow better than life, because with tort damages, as we'll talk about very soon, our goal is to return the plaintiff to her pre-injury condition. Well, here that would be non-existence. So, courts just totally freak on this one, and do not allow children to recover in wrongful life for the harm of existing.
- Wrongful conception is the parent's action for a healthy, but unwanted child. So, the parents go to see a doctor because they, let's say already have two children and are suffering some financial downturn. And they don't want to have anymore children. So, they go to a doctor to go through a sterilization procedure, which was done negligently, and next thing they know, they now are pregnant. They have another child. And they sue the doctor in malpractice. And the doctor says, "You weren't harmed. You were given a wonderful gift. I gave you a child." And they're saying, "Yeah, but I don't want the child." Well, you might imagine there's some discomfort with that with courts, and what most courts say for wrongful conception is, "We'll give you some limited damages, plaintiff. We'll give you the cost of the birth and a little pain and suffering, because rumor has it there's a little pain in the beauty of childbirth. And maybe a little loss of consortium to the husband during the time...and
- Wrongful birth is the parents' claim, where they have a child, they wanted a child, but they wanted a healthy child and they wound up with an unhealthy child. Now, it's important to note here the defendant doesn't make the child unhealthy. If that's the situation you have, courts are very willing to allow the plaintiffs to recover. So, if Xena goes to Dr. Destructo while she's pregnant and during amniocentesis, Dr. Destructo negligently performs the amniocentesis, puncturing the fetus' lung, so that when the fetus is born, little Pablem is born with a punctured lung, Pablem can sue Dr. Destructo, because...but for the negligence of Dr. Destructo, Palem would have been born with a functioning lung. He would have been healthy. What happens in wrongful birth cases and what makes them so controversial, is that the plaintiff says, "If you weren't negligent, we would never have procreated, or we would have terminated the pregnancy." So, you could have a case where due to...in one case,...and
- Or in other cases, the doctor...typically these are malpractice cases, they don't have to be, but they're typically malpractice cases, the defendant negligently fails to discern that there's a severe impairment with the fetus. And so, the child's now born in a severely impaired condition, and the parents say, "Well, we would have terminated this pregnancy if we had known." Well, you can imagine that this is very controversial and causes courts great discomfort. Many courts refuse to recognize a wrongful birth claim. Those that do, and there's a significant number that do, allow the plaintiffs to recover the extra special cost associated to the unhealthy condition of the child. They wanted a child. They were prepared to pay to raise the child through the age of majority. And as many of us know, and far, far beyond is often the case. But, there are extra costs. By having a deaf child, it's more expensive than a hearing child, because there's extra cost associated, or based on the...
- After laws of consortium, wrongful death and survival, the next damage-related topic I want to talk about is this situation which you might imagine is rather controversial, where the injury that the plaintiff is suing for, the injury that the plaintiff claims they suffered was the birth of a child. These are cases of wrongful conception, wrongful birth, and wrongful life. Wrongful conception, wrongful birth and wrongful life are very controversial, because the injury that the plaintiff's suing for is the birth of a child.
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Nonfeasance 11 results (showing 5 best matches)
- And that motion to dismiss would be granted in virtually every American jurisdiction. It would be granted because this is a context of nonfeasance, where the parents of the baby are stating that Diablo should have intervened to confer some sort of benefit on them, and there's no obligation to do so in American tort law. So, when we have misfeasance, affirmative risk-creating conduct, our assumption is that there's a duty owed in negligence, unless an exception applies. Where we have nonfeasance in negligence, we assume there is no duty, unless an exception applies. Now, of course, there are exceptions to this no duty or aid rule, which is because we're uncomfortable with this rule to some degree, we recognize that it's somewhat barbaric, and indeed, most of the world has a different approach than we do in the United States. So, we wanna look at the various exceptions.
- One exception is where the defendant's tortious conduct creates the need to rescue. Where the defendant's tortious conduct creates a need to rescue. In other words, the defendant creates through their conduct, which constitutes a tort, the need to rescue. So, if the defendant negligently creates the situation where there's a need to rescue the plaintiff, then there's a duty to rescue. So, if Dell is riding his car across a narrow bridge, and in violation of law, he's encroaching into the lane of oncoming traffic. And Paulette is driving towards him, and is afraid she's gonna collide into him because he is encroaching into her lane, so she overcorrects. And to avoid colliding, drives off the bridge, into the water below. Because the defendant's negligent conduct created the need to rescue, every jurisdiction would say he has the duty to rescue. Now, he doesn't have to jump off the bridge into the water below. He has to take reasonable steps. Perhaps call 911. He has to do whatever a...
- In a minority of jurisdictions, still a relatively small minority of jurisdictions, if the defendant's conduct at all, even if it's not a tort, even if it's not tortious, but if the defendant's conduct creates the need to rescue, then there's a duty to rescue. So, there was a case that was quite provocative out of, I think it was North Dakota. And through no fault of their own, a railroad, one night, it was low visibility, collides into the plaintiff, who is on the railroad tracks. Again, there was no proof that there was negligence on part of the railroad when it collided into the plaintiff/victim. But once the railroad discovered that they had collided into, and seriously injured, the plaintiff, the testimony of the engineer was he did not want to get his new jacket bloody, so he didn't do anything and didn't come to the aid of the person who got run over by the engineer's train. And the court said, "Even if you weren't negligent, you had an obligation to rescue, to take...
- The next area of duty to consider is where duty issues arise, because we're in a category where we're talking about nonfeasance as opposed to misfeasance. Again, misfeasance is affirmative, risk-creating conduct maybe brought about through a negligent omission, but nonfeasance is where the plaintiff is suing the defendant, claiming that the defendant should have somehow intervened to confer a benefit on that plaintiff. This is disfavored in American tort law. We start with the assumption that we are not obligated to intervene to confer benefits on others, absent in exception. So, the context in which we wanna look at nonfeasance arise first in the context of duty to rescue or aid. Second, duty to control or warn. And third, duty to protect.
- So, starting in the first with duty to rescue or aid. Imagine that it's a warm, sunny day and Diablo is leisurely strolling along some railroad tracks, when he hears the unmistakable little cooing of a baby. He looks up, and sure enough, in the middle of the railroad tracks is this little baby, this little bundle of joy. He walks over, looks at the baby that's in this little basket in the middle of the railroad tracks. Diablo looks at his watch, says aloud, "Showtime," and goes and leans up against the tree. Remarkably, right on time, along comes the passenger train and runs over and kills that baby. The parents of the baby find out what happened. And they sue Diablo for negligence, claiming that it would've been a very small burden on him and of no risk to himself to just go and move the baby off the railroad tracks. And if he had done so, the baby would not have been killed by the oncoming train. The lawyer for Diablo, and I would say, you wanna think twice before you accept...
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The Reasonable Person Standard of Case 11 results (showing 5 best matches)
- When we talked about intentional torts, by definition, intent is subjective. Intent requires us to look into the mind of the defendant and ask, "What does the defendant know? What's going on in the defendant's mind? What's the defendant thinking?" Now, we can't really read the defense mind, but we're trying to figure out what's really going on in the defendant's mind. That's not relevant for negligence. We're looking at conduct. And there's this very famous old case that some of you will look at called, "Vaughn v Menlove." and what happens in this case, is that Menlove piles up some hay tightly in a way that it spontaneously combusts. I certainly didn't know about this, but you farmers and others of you listening to me, you totally know about this. I had no idea that if you tightly pile hay, there's a risk that it will spontaneously combust and starts a fire. But in this community, that was knowledge common to the community. And Menlove piled this hay and claimed, "I didn't know. I...
- But the rule is clear, that when we're talking about mental ability, experience, knowledge, and any of those things that are specific to the defendant, none of them are relevant under the reasonable, prudent person standard of care, and negligence. We do take some things into account. The tort system isn't completely barbarical, only maybe mildly so. And there's suspicion about mental conditions because they're hard to measure. But when we're talking about physical conditions, courts will take in to account the physical condition of the defendant. If the defendant is blind, the standard of care will be the reasonably prudent, blind person under same or similar circumstances. If the defendant is deaf, if the defendant has lost a leg, then the standard of care will take that condition into account, so it would be the reasonably prudent deaf person, the reasonably prudent person missing a leg. And once that's the standard of care, then the jury, it can take that physical condition into...
- We're requiring people to rise to this minimum acceptable level of a reasonably prudent person under same or similar circumstances. As a lawyer, I guess it makes it easier for us if we are representing someone, it spares us from having to argue that our client isn't the brightest bulb on the tree or, you know, "Ladies and gentlemen of the jury, let me put it to you this way, my client is so dumb that he sees a sign that says wet floor and does. My client is so..." We don't argue that because it's just not relevant. We're gonna require people to have the intelligence common to the community. Again, it seems at some level, a bit unfair, but we have the right to expect a certain level of conduct from the others with whom we interact. We go so far in American tort law with this principle, that for negligence, we require the insane to be sane. We say because the reasonable person is sane, the fact that they defend it is acting pursuant to some insane delusion. So there are a variety of...
- So if 30-year-old Dolores, who has lived her entire life in New York City, and never has once had occasion to drive a car, suddenly takes a job in Los Angeles, and it's her first day as a licensed driver in Los Angeles, and she misjudges her speed and collides into Paul's car, stopped in front of her at a stop sign, denting the car. Paul sues Dolores for negligence. Dolores says, "I wanna put on evidence that this was my first day as a licensed driver. And given that this was my first day of driving, I was driving reasonably." That evidence would not be relevant. That evidence would not be admissible because the determination would be that we're gonna look out what is the reasonable, minimal level of expected driving in this community and we expect the defendant to rise up to this. You know, at some level, this can seem unfair. We're calling negligence a type of fault. We're saying that a negligent defendant is at fault. But if someone just has the misfortune to be born with slower...
- Yet the court says, "In negligence that doesn't matter. You must behave defendant with the level of mental acuity, the mental skill, and ability of the reasonable person in this community. And if you fail to do so, we find you to be negligent." Now, this is really controversial as you might assume. This makes people very uncomfortable because it seems extremely unfair to make people say that you should act sanely when you're incapable of acting sanely, in essence, through no fault of your own. The arguments, the more modern arguments that justify this role, are that we are trying to mainstream the mentally ill more in society than in the past when we would institutionalize them, so maybe this is a part of getting buy-in by holding the mentally ill liable for their negligent acts. And another is, it's very hard and complicated to imagine what the cases would be like if you had a reasonably prudent paranoid schizophrenia standard of care, you would need all these experts, it will...
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Land Possessor Liability 14 results (showing 5 best matches)
- And the narrowest of all involves around trespassers. See, obligation owed to a trespasser is to avoid the infliction of willful or wanton harm. The intentional tort, you saw...you just can't shoot someone for trespassing on your land. Well, here too, the idea is one cannot inflict willful or wanton intentional harm or set traps to injure trespassers. And trespassers are not the spawn of Satan. I'm going to reckon that every one of you listening to me has trespassed at some point in your life, because all that is required to be a trespasser is that you enter the land that turns out to be the land of another. You may reasonably believe you have permission, but you don't. And therefore, a land possessor enters the land without the express or the applied consent of the land possessor. And in those situations, the only obligation owed by land possessor is to avoid the affliction of willful or wanted harm. Status can change and status can be debatable. So, you need to look at the time...and
- So, let me give you an example based sadly on my own life but bad. Let's assume that I go to Dumbo Supermarket because I want to buy a box of Cocoa Krispies...because I actually am having trouble finding this cereal, but it was like, you know, chocolate and you let it soak forever, and it would get really soggy in the milk, and the milk would be like chocolate milk, so you could have chocolate milk plus soggy cereal, which I'd call win-win. So, I'm looking for a box of Cocoa Krispies in the cereal aisle of Dumbo Supermarket, and I trip over a piece of broken tile on the floor of the cereal aisle at Dumbo Market. I sue them for the injuries I suffer as a result. Do I win? Not necessarily. Am I owed a duty? Absolutely, yes. I'm owed a duty because I'm an invitee. I am there to potentially confer an economic benefit on them, and therefore they owe me a duty of reasonable care. And I will recover if I can show that Dumbo Market acted unreasonably by not discovering or repairing that...
- But, assume instead...and this is the way it used to be before these fancy groceries all had public restrooms...assume that I asked to use the restroom at Dumbo Market and they did not have a public restroom, but they had an employee's restroom in the very back, which they said that I could use. So, I go through those big, heavy swinging doors and go to the employee restroom. And as I'm leaving, I'm washing my hands and I get cut on a broken faucet handle. My status has changed. I am now a licensee. I am not in a place of the store where I am going to potentially confer an economic benefit, but I do have permission to be there. Because I'm a licensee, I'll only recover for my cut hand if I can show that Dumbo Market actually knew, actually knew of that broken faucet handle, and second, that it was not obvious, it was concealed. If I can show that, they had an obligation to warn me about that danger and would be liable for my injuries, because they did not provide me a warning.
- So, you've got the traditional common law approach, you've got an approach that is a unitary standard, which says a duty of reasonable care is owed to anyone coming onto the land. And then just to complicate it, some jurisdictions have said, "We're going to combine the two categories of invitee and licensee, and say that for invitees and licensees, they're owed a duty of reasonable care, but we're going to maintain the rules that apply to trespassers." So, there's a variety of different approaches that jurisdictions take here.
- If we're dealing with the duty owed to people outside the land...we've been talking about people who come onto the land, land entrants, but people outside the land, and they're suing the land possessor for injuries suffered by a condition on the land. Where the plaintiff is outside the land, we ask ourselves, "Is the condition natural or artificial?" If it's an artificial condition, a human-made condition, a duty of reasonable care is owed. So, if Desiree decides to build a fake Eiffel Tower on her property, and on one windy day, a piece of that Eiffel Tower goes blowing off, Pierre is walking by that property and gets hit in the head with that piece of tile from the Eiffel Tower that blows off of Desiree's property into his head, Pierre proclaims, "Zut alors," and sues for negligence. He will be owed a duty of reasonable care. I'm not saying he'll win. He still has to show unreasonable conduct on the part of Desiree, but he'll be owed a duty because this is an artificial condition,...
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Defense of Property 5 results
- So in Katko versus Briney, what happened is there was an abandoned farmhouse. I think it's important, that fact is important, it's an abandoned farmhouse. And the Brineys are frustrated because people keep breaking into this farmhouse to mess around and steal things that are inside. But they tend to be, you know, just little things that have been left in there, not terribly valuable things. But they're just annoyed. So Mr. Briney decides to set up a spring gun in the bedroom, so when the bedroom door is opened by someone who has broken into the house, the gun will go off and shoot them probably in their legs. But, you know, it's aimed to hit them. But Mrs. Briney, being the bleeding heart suggested maybe to lower it, so it would aim for the legs and not the person's heart. So Katko breaks into the house. He's a junk collector and he is looking for some antique glass he must have found there before. He's rummaging around the house. He goes into the bedroom and get shot in the leg by...
- So if you take anything away from law school, is that it's a bad idea to set up a spring gun because the other problem with the spring gun is there's a rule that you need to ask the person to leave the property unless it's futile to do so, the spring gun can't do that either. But note that if the house were not an abandoned farmhouse, but let's assume that the house was the home where the Brineys live and they are home at the time Katko breaks in. I think it's important even if it's their residence, it's important that they are home at the time Katko breaks into their house. Briney grabs a gun and shoots Katko. Katko sues for battery. Now, I think there's a defense. There's a defense of self-defense or defense of third persons, he's defending himself, he's defending his family. And as long as the jury finds that the Brineys honestly and reasonably believed they were threatened with imminent deadly harm, they responded with proportionate force, they have a self-defense claim and...
- There's one case and I'm particularly intrigued by that gives us a chance to sort of review some of what we've talked about called Brown versus Martinez, and some of you will have looked or will look at this case. What's interesting to me about this case is I think there's some interesting room for debate. What happens here is that Martinez is a farmer and among other things, he grows watermelon and he has this huge watermelon patch. To his irritation, people keep coming to steal watermelon from his watermelon patch. So one evening, he hears what sounds to be kids in his watermelon patch. So he decides he's going to scare them. So he goes outside of his house and he shoots his gun in the opposite direction of the watermelon patch and says, "Get out of here or I'm gonna shoot you," to try to scare them off and hope that they would not come back. So he shoots in the opposite direction of the watermelon patch. Completely unbeknownst to him, Brown is standing off the property, in front...
- Is this a situation where defense of property should work? Well, first thing we wanna think about is how does the Plaintiff Brown have a claim for battery? The defendant never intended battery, right? It was never his intent, he never intended battery. He intended an assault to scare the kids away and he intended to assault the kids in the watermelon patch. He didn't intend to assault Brown, but under the doctrine of transferred intent, Brown will have a claim for battery, right? Right? Are you feeling mighty and righteous? If you see how the transferred intent doctrine works here, you should feel mighty and righteous, because even though there was no intent for an assault and there was no intent to Brown, excuse me, there was no intent for battery and there was no intent to harm Brown, the intent to assault those kids in the watermelon patch is enough to satisfy the intent element under transferred intent, so that Brown can recover for battery. So that's the prima facie case. But...
- So we've looked at self-defense and we looked at defensive third persons. But for defense of property, where instead of trying to protect yourself or the lives of others, the defendant is acting to protect property, real property or personal property, here, the rule is that the defendant may use reasonable force to protect real and personal property. However, reasonable force when it comes to the protection of property is never deadly force. Deadly force can never be used in the context of defense of property.
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Utility Defendant 2 results
- The last category where duty is an issue for negligence is based on who the defendant is. So, let's first look at the situation where the defendant is a utility, like a water company or electric company. And the most famous case here is called Moch versus Rensselaer and what happened in that case was there was a contract between the water company and the city to provide water for the hydrants. And Moch owned a warehouse that caught fire and it burned down because, in breach of the contract that the water company had with the city, the water company had not provided adequate water to the fire hydrants.
- So, when the fire department arrived to fight the fire, there wasn't enough water and Moch's building burned down. Moch sues in negligence and the court says no duty because to have a duty where the defendant is a utility, the court's only going to allow recovery to someone who has a contractual relationship with that utility and that they are injured where that contractual relationship applies, for example, in their home. The concern is that water, gas, electricity are so important that we need to keep them affordable. So, we want to limit or courts want to limit the class of potential plaintiffs. So, that's where the defendant is a utility.
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Negligent Infliction of Emotional Distress 21 results (showing 5 best matches)
- Assume that Dora is driving negligently. And Dora collides into and injures, Parker, breaking Parker's leg. Parker has to go to the hospital, he's in great pain. And Parker walks for the rest of his life with a severe limp as a result of the defendant's negligence. If Parker tries to recover as part of his damages for the emotional upset of walking with a severe limp for the rest of his life, that will be recoverable under the title of pain and suffering damages, they're parasitic. They follow from the physical harm that he suffered.
- Let's look at these direct claims first. Assume that Daronda [SP] is driving negligently, and she turns the corner too quickly, and she jumps the curb, and she almost runs over Poindexter. Poindexter is able to jump out of the way in the nick of time. Poindexter's so emotionally traumatized that he suffers a heart attack. As a result of that emotional trauma, Poindexter sues Daronda.
- Even jurisdictions that are restrictive, that require the plaintiff to be in the zone of danger and suffer physical manifestations, have recognized two rather quaint exceptions where the plaintiff can recover, is owed a duty, and can recover from emotional distress, absent proof of being in the zone of danger, a near miss, and a physical manifestations, the idea being it's so foreseeable that the plaintiff would recover, or would suffer emotional distress in this context.
- Well, in the jurisdiction where this came up, a zone of danger jurisdiction, the court said no recovery. Of course, it's foreseeable. And assume that the mother and the father each had heart attacks because they were so emotionally traumatized, so you've got a physical manifestation. Under the zone of danger test, they lose because they were never at risk of physical harm. Under an impact test, of course, they lose. There was no impact, no contact between the defendant and them.
- Nor did he have physical manifestations, but court said, "You know what, we believe you." But these are narrow exceptions, and courts seem to adhere to this, negligent transmission of death information of a loved one, or something like mishandling of corpses. Otherwise, the traditional rules for something like a zone of danger and physical manifestations are required in most jurisdictions.
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Landlord Liability 5 results
- So, that brings us to the end of the element of duty and I just wanna reiterate that the question of duty is one of law. It's for judges to decide. The other elements tend to be decided by juries, but duty is all about public policy. And all jurisdictions have some approach that they take, some variety of factors for suitability, the impact on society of finding a duty. You know, what would happen if a duty was found in certain situations. And this is how negligence law most evolves through the element of duty and judges deciding things have changed and now we're gonna impose a legal obligation, even though we didn't have one in the past or we're gonna recharacterize a legal obligation or we're gonna end what had been a legal obligation.
- And finally, the last category of duty and negligence is where the defendant is a landlord. Traditionally, when property was rented all the obligations went to the tenant and the landlord's obligations ended. That's still almost their role. But courts have recognized four exceptions. And the good news is three of them totally makes sense. Three of them you can almost guess at. The first is if there is a common area. So, if there is some dangerous condition that injures a tenant or a guest of a tenant, that's in a common area which is an area over which the landlord retains control, the laundry room, the lobby, the hallways. There is a duty owing there.
- Second, if there are negligent repairs. It may be that the landlord is not obligated to make repairs, but if he does so, and he does them negligently, and a tenant or a third-party gets injured by those negligent repairs, there's a duty owed. Third, at the time the property is leased if the landlord knows of a non-obvious dangerous condition, there's liability if that condition injures a tenant or a third person. So, where the landlord actually knows of a non-obvious concealed dangerous condition. And finally, a duty is owed where the landlord knows that the leased property is going to be held open to the public at large.
- If the landlord knows that the leased property is going to be held open to the public at large, he has an obligation to take reasonable care to discover dangerous conditions on the leased property. That's the great majority rule. And again there's a minority of jurisdictions that impose a duty of reasonable care on the landlord as to tenants and third persons injured by conditions on the land.
- So, there's a lot of public policy and it varies how much a professor wishes to get into the public policy aspects of duty. They're really interesting, but really complicated. So, we'll move our attention to the two remaining elements, cause in fact and proximate cause.
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Breach of Duty 12 results (showing 5 best matches)
- The most relevant, important, famous case that deals with analyzing whether the defendant has failed to act as a reasonably prudent person under same or similar circumstances, thereby breaching a duty, is a case called Carroll Towing. This guy, named Judge Learned Hand, and I guess, if that was your name, you'd be bitter too. So, in this case, he makes the lives of law students relatively miserable, because if we could do math, we would have gone to med school or done something else. But, he actually gives us algebra. In the Carroll Towing case, the focus is whether the plaintiff was at fault, whether the plaintiff in this case was at fault for not having a bargee on the barge during working hours. What happened is it was a winter, it was war time, World War II, and this New York harbor was extremely busy. And ships were being drilled in and out of this harbor. The days were short because it was wintertime, and it was extremely busy because it was war time. The cargo was... ...And...and
- That's the result in the case, but notice the flexibility. If, for example, we change and add one fact, which was the reason the bargee was not on the barge, is that his child had been severely injured, and he had been beckoned to the hospital, to the emergency room of the hospital. So, he had quickly fled to get to the hospital. That changes the equation. Probability and magnitude stay the same. But, burden goes from being really low to really substantial. The burden on him, of staying on the barge and not attending to his severely injured child would be enormous. And so, given that there's an emergency not of us his making, the burden is much higher and therefore, a jury may well conclude, does not have to, but may well conclude that there's no unreasonable conduct.
- The structure to use that in deciding whether the defendant has failed to act as a reasonably prudent person is to look at this Hand formula. The Probability of Harm, how likely is it that some harm would occur, times the likely magnitude of that harm. If it comes about, what is the seriousness of that potential injury? And we balance that against the burden on the defendant of avoiding the harm. So, this BPL formula is very useful in analyzing breach of duty. And many professors, and I'm one of them, thinks it's extremely important because it gives you some structure to analyze the element of breach of duty. So, I suggest that you use and practice with this BPL formula from the Carroll Towing case and apply it to different facts, to different factual scenarios.
- In one old case, called Levine versus Blant, the plaintiff got a piece of rope caught in her hand when she was using what's called a dumbwaiter. It's on a rope. It's sort of like, pulleys to bring things up and down. And there was this coarse rope being used, and the plaintiff says, "Because you had coarse rope, a piece of this rope broke off in my hand. I got an infection." And ultimately in the case, the plaintiff lost her arm. She sues and says, "I'm showing that the defendant was unreasonable for using coarse, as opposed to smooth rope, because the well-established custom is that almost all, the overwhelming majority of people who use these dumbwaiters, use smooth rope, not coarse rope." The court says, "Plaintiff, you lose, because you failed to put on any evidence about the relevance of the custom. You needed to put out evidence, plaintiff, that the reason defendants use smooth rope rather than coarse rope is to prevent people from getting pieces of the rope broken off into...And
- So, that's all a bit convoluted. So, to make it simpler, the focus is on whether the bargee was unreasonable for not being on the barge during working hours. Learned Hand says, "This depends on the facts. To decide whether a bargee is negligent for not being on the barge requires us to look at the surrounding circumstances." And to determine reasonableness, he says, "It's a function of three factors. On one side of the equation, we've got probability. And probability looks at how likely is it that the harm-causing event will come about?" And here, the harm causing event is a barge getting loose. And he says, "The probability of a harm-causing event like a barge getting loose is high, because the days are short, the employees at the port were really busy, and it was war time. So there was a lot of activity. Therefore, it was a high probability that a barge would get loose. Second, we multiply that by the likely magnitude of the harm, not the actual injury that occurred, not the worst...
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Derivative Actions 3 results
- So, many jurisdictions treat wrongful death, loss of consortium, and bystander negligent infliction of emotional distress as a derivative action. And what this mean is, it arises from the underlying claim. So, if the negligent driver Doronda, seriously injured Junior, Junior has a negligence claim against the negligent driver Doronda, right? For his personal injuries, Junior can recover. Arising out of that claim, the mother who watched Junior get run over by the car. And if Junior is killed, his parents who bring the wrongful death claim or plan of bringing a loss of consortium. All have these claims that derive out of or arise out of that underlying claim. Well, what that means is, the underlying claim fails, if you were in... What we'll see is a notion of contributory negligence. If Junior was contributorily negligent, and he was barred somehow from recovery due to his negligence. Then under the concept of derivative actions, these other claims, the wrongful death, loss of...
- Before we start looking at the element of damage in more detail, I wanna make a brief comment about this idea that from a single negligent act, a great deal of liability can flow and the notion of derivative actions. We talked a little while ago in the context of negligent infliction of emotional distress about this idea of bystander recovery. We talked about loss of consortium and wrongful death. So, from a single negligent act, a negligent driver for example, who severely injured or kills a child through her negligent driving, not only has an impact on the person she severely injured or obviously kills, but there are others who are affected. So, the mother who witnesses her child get severely injured by the negligent driver, brings to the derivative claim, who brings the bystander negligent infliction claim.
- Or the husband who sues for loss of consortium because his wife's been severely injured by the tortfeaser's conduct of negligently injuring his wife or the heirs who bring a wrongful death claim because their wife or their mother has been killed due to the tortious conduct of the defendant. So, a lot of liability can flow from a single negligent act and it's important for you to remember these derivative actions. On exams, it's extremely easy for us, the law professors, to test you on these concepts of wrongful death, loss of consortium, bystander negligent infliction of emotional distress as an add-on, subsequent to a discussion of the underlying claim. So, be very mindful, be careful about that. It's not like we're trying to trick you because as you all know, by this point, we are your friends. All right. Well, we like to think, at least many of us like to think we are your friends. We're not trying to trick you, but it's a great way to test the material.
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- Publication Date: January 24th, 2019
- Subject: Torts
- Series: Sum and Substance Audio
- Type: Audio Lectures
- Description: While commuting or exercising learn about battery; assault; false imprisonment; intentional infliction of emotional distress; defense of self, others, property; recapture of chattel, trespass to land, trespass to chattel, conversion, public/private necessity, consent; negligence: duty, breach, proximate cause, joint tortfeasers; damages: nominal, punitive, and compensatory; surviving personal injury actions; wrongful death, wrongful birth/life, strict liability, affirmative defense to negligence with economic advantage, nuisance, misuse of judicial process, products liability, defamation and related torts, invasions of privacy. Information useful to preparing and pressing your case.
