Maryland Torts Bar Exam Outline
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Transcript of Maryland Torts Bar Exam Outline
Torts Notes
I) Intentional Torts
A) Elements
1) Volitional Act
2) With intent
(a) Transferred intent applies to all intentional torts except IIED
(i) Can transfer between people and tort or both
(b) Intent always includes when a “substantial certainty” the harm would result
3) Caused injury
(a) “but for” and proximate
(b) Substantial factor is sufficient
(c) Damages = no ACTUAL damages required for intentional torts
(i) May be nominal
(ii) Or punitive (with malice)
B) Types of intentional torts
1) Battery
(a) Harmful or offensive contact
(i) Reasonable person standard
Hypersensitivity does not matter unless defendant was aware of it
Absent indication otherwise, people are presumed to have consented to the
contacts inherent in ordinary daily life
(b) With the victim’s person
(i) May be through indirect contact, but must be some contact
(ii) Anything connected to their person
(c) Causation
(i) Defendant action was substantial factor in causing the harm
(d) Damages
(i) No actual damages required
(ii) May be nominal (dignity)
(iii) With malice, may be punitive
Some states allow conscious disregard of highly probable danger
2) Assault
(a) Intentional
(i) Intent to place someone in apprehension of imminent harm or offensive
contact
(b) Overt Act
(i) Mere words not enough without something else
The something else can be circumstances or conduct
(c) Reasonable apprehension of imminent battery
(i) Apprehension = reasonably aware
(ii) Imminent = NOW, not later
(d) Damages
(i) No actual damages required
(ii) May be nominal (dignity)
(iii) With malice, may be punitive
3) False Imprisonment
(a) Intentionally
(b) Confine or restrain another
(i) By using
Physical force or blocking exit
Shopkeeper exception/privilege: to reasonably confine a suspected
shoplifter
A complete defense to false imprisonment
Orders
Not mere persuasion
Direct or indirect threats
False displays of authority
(ii) Victim must be aware of confinement
Unless actual harm results (ie: to an unconscious person)
Transferred intent applies
Can be liable to a third party if they are confined and aware of it, even
if intended to confine or prevent entry to someone else
(iii) Length of confinement does not matter, except to damages
(c) To a bounded area
(i) No reasonable means of escape that is apparent or discoverable
(d) Damages
(i) No actual damages required
Unless victim was unaware of confinement
(ii) May be nominal (dignity)
(iii) With malice, may be punitive
(e) Defenses
(i) Citizen’s arrest
4) IIED
(a) Intentionally or recklessly
(i) NO transferred intent
(b) Engages in extreme or outrageous conduct
(i) Exceeds limits of human decency, civilly intolerable
(ii) Ie:
A pattern of conduct
May be a single incidence of conduct if the circumstances make it
extreme or outrageous
Susceptible victim groups (young, old, pregnant)
Only liable to a 3rd party bystander when defendant knows the bystander is
present, and the bystander observes harm to the victim and:
The actual victim was an immediate family member or
It is a random bystander and actual bodily harm results
(c) Causation
(i) Substantial factor test applies
(ii) In the case of a bystander, knowledge they were present is also required
(d) Damages
(i) Must prove ACTUAL damages (ie: severe emotional distress in excess of
what a reasonable person could endure; physical injury not necessary, may be
emotional/mental)
5) Trespass
(a) Land
(i) Intent
Not to trespass, only to enter or engage in the act that leads to entry
Mistake of fact does not matter
Exceeding the scope of an earlier consent qualifies as intent to invade
(ii) Physical invasion of another’s land
Can be a thing
can be underground or in the air
can be a landlord trespassing onto a tenant’s land (because a landlord does
not have a right to possess his rented apartments)
(iii) Standing
Anyone with right of possession (owner, lessee, adverse possessor,
constructive possessor, etc)
(iv) Damages
Actual damages not required
Nominal damages possible
(b) Chattel
(i) Intent
To engage in the act that interfered with the possession right to the chattel
Intent to interfere not necessary
(ii) Interference with right of possession
Dispossession
Intermeddling
Makes it harder to use and enjoy the chattel
(iii) Standing
Anyone in possession, or
The immediate right to possess
(iv)Damages
ACTUAL damages required
Repair costs, loss of use, reasonable rental, diminution of value, etc
6) Conversion
(a) Intent
(i) To commit the act that interferes with use and enjoyment of a chattel
Must be tangible property, or intangible reduced to tangible form
Demand and refusal to return must occur when chattel was obtained
rightfully
(ii) Note: if a buyer rejects or revokes goods for any reason, then they have not
accepted them and MUST return them to the merchant. Any other use by the
buyer is a conversion for his own use and the merchant is entitled to market
price damages at time of conversion.
(b) Interference
(i) An act of possession or interference with plaintiff’s chattel
(ii) Eg: stealing, substantially alter, severely damage or destroy
(c) Seriousness
(i) Consider 5 things
Duration and extent of interference
Defendant’s intent to assert a right consistent with the rightful possessor
Defendant’s good faith
Expense or inconvenience to plaintiff
Extent of harm to the chattel
(d) Damages
(i) Full value (market value at time of conversion), or
(ii) Replevin (recover the chattel)
C) Defenses to intentional torts
1) Consent
(a) Express (words or actions, demonstration of willingness)
(i) Subject to scope of consent limitations
(b) Implied
(i) By silence, when a reasonable person would have consented (such as where
necessary to save a life or other interest)
Ex: The person was in need of rescue from a battery
(ii) By participation (essentially an assumption of risk standard)
Subject to scope of consent limitations as well. If conduct intentionally
exceeds scope, then it is no defense.
(c) Invalid when
(i) Obtained by fraud
(ii) Obtained by duress
(iii) Plaintiff was mistaken and defendant knew it
(iv) Youth, intoxication, or incompetence are at play (maybe)
2) Defense
(a) Self-defense
(i) Non-deadly force
When reasonable belief about to be subjected to offensive contact or
bodily harm
(ii) Deadly force
Only when reasonable belief that serious bodily injury or death was
threatened
Proportionality requirement
NEVER available to defend property
(iii) Reasonable person in circumstances standard
May apply even when reasonable belief turns out to be mistaken
(iv)Duty to retreat
Majority: no duty to retreat
Restatement: duty of safe retreat anywhere
(v) No 3rd party liability unless was deliberate
(vi)Mistake as to self-defense – must have been reasonable to provide a defense
(reasonable person in the circumstances)
(b) Defense of others
(i) Same as self-defense with reasonable belief the other person would have been
entitled to use self-defense
(c) Defense of property
(i) NO deadly force
(ii) Reasonable mistake as to property boundary does NOT negate defense
3) Privileges
(a) Recapture of chattel
(i) Reasonable force permissible when property was wrongfully taken
If was acquired lawfully, peaceful means required
(ii) Force never permitted to reclaim land
(b) Parental discipline
(i) Reasonable force or reasonable confinement
(ii) Reasonableness can vary with age and maturity of child
(iii) Must be the parent, except
Parent can authorize educator to have same privilege
(c) Necessity
(i) To prevent substantially more serious injury than that which was caused
(ii) Private
Qualified privilege to protect a limited number of people
Only actual damages recoverable if was trespass
(iii) Public
Absolute privilege to protect a large number of people
Not liable for damages as long as was reasonable conduct
Reasonable mistake still ok
(d) Arrest
(i) Elements
If a felony has been committed and
Misdemeanor only if breach of peace imminent or occurring in
presence of arresting party
Reasonably believed the arrestee committed it
(ii) Private citizen
Must be CERTAIN a felony was committed, but may be mistaken as to
the person having committed it
(iii) Police officer
May be mistaken as to both elements as long as belief was reasonable
II) NEGLIGENCE
A) Elements
1) Duty
(a) Standard: reasonable care to all foreseeable individuals
(i) Foreseeability
Majority = duty owed to all foreseeable victims
Minority = duty owed to all, even unforeseeable, if conduct enhances risk
of harm to others
Foreseeability is for the jury to determine
(ii) 3rd party liability
A person will never be liable in negligence for the criminal acts of a 3rd
party UNLESS the crime was foreseeable
(iii) Special victims
Intended beneficiary
Owed a duty even if not present
Viable fetuses owed the duty
Wrongful birth, wrongful pregnancy
(iv)Special defendants
Physical disabilities (allowances made)
Children
Under age 4, incapable of negligence
Otherwise, judge by other children of that age and experience
No allowances for children engaging in adult activities
Special skills
People who have special skills are held to the standard of others with
similar knowledge and skill
Ex: race car driver = higher standard when driving
Professionals (includes physicians, licensed trades, etc)
Standard of care expected of others in the profession with same skill
and knowledge
Attorney malpractice
Plaintiff must show they had a good case that would have won but-
for the attorney’s negligence
Physician additional duty of informed consent
Liability for lack of informed consent ONLY when there is HARM
that results
Exceptions when
common knowledge risk
patient waives informed consent
patient incompetent (but must use diligence to find someone on
their behalf)
disclosure would be harmful to the patient
automobile drivers
reasonable care to all passengers
special skills
drivers with special skills (gas truck drivers, race car drivers, etc)
will be held to the standard of those with similar knowledge or
skill
some states (not MD), guest statutes require only refrain from gross
negligence or misconduct for free passengers
(v) bailments
balior (the one giving the thing)
gratuitous bailment
duty to warn of known dangerous defects
commercial bailment
duty to disclose dangerous defects if known or should have known
of defect
duty to inspect
bailee (the one entrusted with the thing)
benefit to bailor (from the bailment)
duty to refrain from gross negligence
benefit to bailee
duty to use extraordinary care
mutual benefit
duty of reasonable care
(b) Failure to act = no duty
(i) Exceptions
Special relationship
Gives rise to duty to control third party also
Contractual or relational
Authority over another
Voluntary undertaking
Only liable for gross negligence
Exception to the exception: if victim caused the danger, then it is
reasonably foreseeable someone might attempt rescue and the victim
will be liable
Perilous acts caused = duty to act
(c) LAND: Standard of care/duty
(i) Trespassers (no permission, knowledge, or consent)
Owed only a duty to refrain from intentional, willful or wanton
misconduct
When trespassers are anticipated, expected, or known
Duty to warn of “traps” (artificial, dangerous, deceptively innocent)
Duty to warn of traps applies in cases where invitees may be likely
to trespass into closed off areas
Attractive nuisance doctrine = reasonable care to avoid viewable
enticements to danger
Does the risk outweigh the burden of eliminating the harmful
component?
(ii) Licensees (permission, consent, implied consent, frequent known trespassers)
Duty to warn
Of known, dangerous conditions, unlikely to be discovered
Reasonable care otherwise
(iii) Invitee (permission, consent, plus something extra)
Duty of reasonable care
Limited to areas included in the invite
NO liability in areas that are not open to invitee access
In those areas, they become a trespasser
Business invitee (patron, etc)
Public invitee (mass events, etc)
Some states eliminate distinction between licensee and invitee; both =
reasonable care
(iv)Easement/license holders
Must exercise reasonable care
(v) Lease
Lessees assume duty of owner for areas under control
(vi)Free, recreational use (ie: a pond or lake)
Landowner only liable if willful or malicious failure to warn of dangerous
conditions
(vii) Adjacent occupants
Duty of reasonable care to those around you
(viii) Sellers of property
Duty to disclose latent and dangerous defects
(ix)Statuses go mostly to foreseeability
A landowner will not be liable in negligence for the criminal acts of a 3rd
party UNLESS the crime was foreseeable
(d) Emergencies
(i) = reasonable care, allowances made for acting in an emergency
Unless emergency was of defendant’s own making
(e) Statutes = negligence per se
(i) Violations of any statute that cause injury constitute negligence per se (or
automatic fault) if (key is drafters intent):
Plaintiff was member of the class sought to be protected by the statute
The interest was the intended interest to be protected
The harm was the intended harm to be prevented
The harm materialized in the manner that was of drafters concern
2) Breach
(a) Standard = preponderance
(i) For the jury to determine
(b) Res ipsa loquitor = “the thing speaks for itself” or negligence goes to the jury
(i) Must show 3 things:
Type of accident does not normally occur without negligence
The instrumentality that caused it was in defendant’s exclusive control
Plaintiff did not voluntarily contribute to the harm
(ii) Applies with medical teams, auto accidents, etc
3) Causation
(a) Must be both:
(i) Actual cause, and
“but-for” cause
Substantial factor test for multiple defendants
(ii) Proximate cause (“legal cause”)
After actual cause established proximate cause determines legal liability
Foreseeability is key
Intervening forces can sever causation chain (superseding cause)
Except when force or result was foreseeable
4) Damages
(a) Must show ACTUAL damages
(i) Nominal damages not allowed in negligence
(ii) Some injury, harm, illness, physical, mental, emotional
(b) Purely economic loss typically not allowed
(i) Except with negligent misrepresentation
(c) Duty to mitigate
(d) Collateral source credit (insurance payments)
(i) No credit for victim’s own insurance payments
(ii) Credit for defendant’s insurance company payments though
(e) Punitive damages
(i) ONLY allowed when willful, wanton, reckless, or malicious behavior
(f) Types of damages per claim
(i) Personal injury
Pecuniary and
Lost wages, medical expenses,
Non pecuniary damages possible
Pain and suffering, loss of consortium
Eggshell skull rule: take your plaintiff as they come (different from
intentional torts)
Not allowed
Attorney’s fees, interest
(ii) Property damage
Cost of items
Repairs
Loss of use
B) Specific Negligent claims/issues
1) Negligent infliction of emotional distress (NIED)
(a) Carelessness
(b) That caused victim to suffer
(i) Direct NIED
Impact rule = defendant’s act led to physical touching
zone of danger rule (MD & majority) = victim was at risk of death or
serious bodily harm, reasonable fear, and severe emotional distress
special circumstances
Dealings with the dead - transmission of information about, or
handling of corpse of deceased loved one = direct NIED
(ii) indirect NIED
bystander recovery
follows zone of danger rule
as a result of witnessing injury, suffers severe emotional distress
some jurisdictions may recover if not in zone of danger if:
closely related to injured person, and
was present, and
observed it (through any sense), and
suffered severe emotional distress as a result
(c) Severe emotional distress
(i) Some jurisdictions require physical manifestations of emotion distress (for
purposes of MBE, NIED = Yes, physical harm
(ii) Typically no physical requirement
Just ACTUAL damages
2) Survival and wrongful death
(a) Survival suits
(i) Decedent’s estate sues as if decedent had lived
(ii) Recovery for lost wages, medical expenses, pain and suffering
(iii) Most states do not allow recovery for torts on decedent’s intangible
personal interests, such as defamation, malicious prosecution, and invasions of
privacy
(b) Wrongful death
(i) Decedent’s family sues
(ii) Recovery for loss of support, companionship, society, affection
(c) Some states allow both suits to be filed, but no double recovery can occur for lost
wages and loss of support
3) Interference with family relationships
(a) Spousal
(i) Spouse can sue for loss of consortium, companionship, society, affection (sex)
when spouse was injured by negligence
(ii) Can recover pecuniary damages if not already recovered by injured spouse
(b) Parent/child
(i) Some states permit a parent to recover consortium, etc; maybe loss of services
if child contributed income
(ii) NO consortium action for a child on behalf of injury to a parent
4) Respondeat superior/vicarious liability
(a) Employer
(i) Liable for negligent acts of employees within scope of employment
Within time and space, type of act hired to do, motivation to serve
employer’s ends?
Employer’s instructions generally do not absolve them of liability
Not liable for intentional torts unless force is inherent in the job, or the
employer authorizes in a way likely to lead to tort
If the force furthers an interest of the employer, then the employer will
be vicariously liable regardless of failure to follow employer’s express
instructions
Frolic = employer not liable
Detour = employer liable
(ii) Negligent hiring, supervision, etc is a personal, not vicarious liability
(b) Independent contractor
(i) Employers generally not liable for contractor negligence
(ii) Exceptions
Highly dangerous activities
Duty to public at large due to peril created
(iii) Same employer personal liability for negligent hiring
(c) Business partners
(i) Yes vicariously liable
(d) Automobile owners
(i) Typical rule
Negligent entrustment only = if the loaner knows of risk or problems
(ii) Some jurisdictions (NOT MD)
Family use statutes
Liable for any family member’s permissive use
Permissive use statutes
Liable for any permissive user’s negligent acts
(e) Stores/public locations
(i) NOT vicariously liable for business invitee actions
(ii) ONLY duty to warn invitees of known dangerous conditions
(f) Parents (NOT vicariously liable for child’s acts)
(i) Personal negligence for failing to supervise
That is a personal tort, not vicarious
WILL be vicariously liable if know of a child’s violent tendencies and fail
to control them or warn a caretaker
(ii) Generally not vicariously liable in tort
(g) Dram shop
(i) Alcoholic beverage provider liable for patron’s actions based on negligent
serving
(h) Bailor-bailee (NOT vicarious)
(i) Bailor liable for own negligent acts, but not vicariously liable for a bailee’s
5) Immunities from liability
(a) Federal government actors
(i) Federal Tort Claims Act (FTCA) waives immunity for federal government
actors
Exceptions (when immunity applies)
Certain intentional torts, defamation, abuse of process, etc
Certain specific activities, regulation of money, delivery of post,
military service
Discretionary functions, in official duties
(b) State governments waive immunity in about the same way as federal
(c) Municipal governments
(i) Depends of the type of activity
Proprietary, or
No immunity
Operation of a hospital, etc
Governmental activity, in government functions (police, firefighters)
Immunity applies
Exception
Special duty, as stated, express or implied
Requires contact with the individual and gov’t agents and the
individual’s reliance on the duty to act
Ex: person comes forward with information about a crime,
police fail to protect them in the face of explicit threats
(d) Government officials
(i) Immune while performing discretionary duties without malice or improper
purpose
(ii) Not immune while performing cursory functions
(e) Family immunity
(i) Inter-spousal: at common law, but modern law largely extinguished this
immunity
(ii) Parent-child
Reasonable parent standard, or
Immune when providing necessities or exercising parental discipline
But not when intentionally injures, or child is in a car accident
(f) Charitable immunity
(i) Most states have done away with this
C) Joint and several liability (multiple defendants)
1) In concert (joint & several) liability (both parties liable for the whole)
(a) Common plan or scheme and tort occurred within the scope of it, or
(b) Multiple actors, act independently, and their acts come together to produce an
indivisible injury
2) Pure several liability (some jurisdictions)
(a) Only liable for the portion of damages created
(b) Essentially a rejection of joint and several (like pure comparative but with equal
shares)
3) When jointly and severally liable, the victim can recover the whole amount from any
defendant, and the paying defendant can sue to recover contribution percentages from
other defendants
(a) Assumption is equal shares upon contribution, unless a comparative state
D) Indemnification
1) Suppliers have a right of indemnification against future suppliers in strict products
liability
2) Courts may apply indemnification when one defendant causes additional harm, or are
different levels of culpability
E) Defenses to negligence
1) Contributory fault (MD)
(a) Complete bar
(i) Only if acts of tort feaser defendant were negligent as opposed to grossly
negligent or reckless
Contributory negligence is NOT a bar to recovery where plaintiff’s
negligence was not a cause of the injury (ie: negligent with regard to
something else, but the act did not affect the defendant’s negligence in any
way)
Ex: person texting while at stop light gets rear ended – defendant was
sole cause of injury, plaintiff’s texting did not contribute
(b) Some states comparative instead (percentages)
(i) Some pure comparative (by percentage fault)
(ii) Some modified comparative (only if plaintiff was no more than or not as
negligent as defendant)
Sometimes aggregation allowed with multiple defendants
(c) Last clear chance (only relevant as to contributory fault defense)
(i) Even if plaintiff caused the peril, if defendant had last clear chance to prevent,
plaintiff can still recover
Does not apply if defendant did not see the plaintiff or have opportunity to
prevent
Then typical negligence rules apply
(ii) Oblivious peril: if defendant knew of plaintiff’s peril and did not take last
clear chance plaintiff can still recover
(iii) Helpless peril: if defendant knew or should have known of plaintiff’s
helpless condition and did not take last clear chance plaintiff can recover
2) Assumption of risk
(a) Express
(b) Implied
(i) Knowingly, voluntarily, unreasonably encountered risk
(c) Limits
(i) Common carriers = no assumption of risk
(ii) Statutorily protected classes
(iii) Fraud, force, or emergency
III) Strict Liability
A) Abnormally dangerous/ultrahazardous activities
1) Strictly liable when (elements)
(a) Activity is inherently dangerous
(b) Danger cannot be eliminated through reasonable care
(c) Activity is uncommon
2) Examples
(a) Blasting
(b) Airplane liability to landowners on ground
(i) But not to passengers (utmost care, but not strictly liable)
(c) Crop dusting
(d) Ryland’s v Fletcher
(i) Strictly liable for bringing something onto property that would cause mischief
if it escaped (ie: a dam)
B) Animals
1) When on defendant’s property, status of the plaintiff matters
(a) Licensee or invitee: strict liability for wild or abnormally dangerous animals
(b) Trespasser: NO strict liability
(i) Exception: vicious watchdog
2) When animal escapes from defendant’s property, depends on kind of animal
(a) Wild
(i) Only if it is kept on defendant’s property and for propensities inherent in its
feral nature
(b) Domesticated
(i) Only strictly liable for foreseeable propensities of the animal
(ii) Household pet: only if knows or has reason to know of dangerous propensity
C) Defenses to strict liability
1) NOT contributive
2) Comparative maybe
3) Assumption of risk
(a) Complete bar
4) Statutory privilege
(a) When performing an essential public service
IV)Products Liability (negligence, strict liability, breach of warranty)
A) Negligent products liability
1) Must show defendant had a duty that was breached, and the breach caused damages
2) Duty (reasonable care)
(a) Owed by anyone in the chain of distribution (manufacturer, distributor,
wholesaler, retailer)
(i) Retailer will be liable where a product was defective, they failed to use
reasonable care and inspect, and inspection would have discovered the defect
(b) Owed to any foreseeable plaintiff
(i) Extends beyond the final purchaser to any user or bystander
3) Breach
(a) Failure to act with reasonable care in designing, manufacturing, inspecting, and
warning about the product
4) Causation
(a) Must still prove actual and proximate cause
5) Damages
(a) Personal and property damage ok
(b) But NOT purely economic damages
6) Defenses
(a) Contributory
(b) comparative
(c) Assumption of risk
B) Strict products liability (aka, defective products) (requires use in a reasonably
foreseeable way)
1) Must show only that the product was defective
(a) Any actor in the chain of distribution liable
(i) despite apparent lack of culpability
(ii) joint and several
(b) Two types: manufacturing and design
2) Manufacturing defect
(a) Product does not conform to manufacturer’s own standards
(b) Elements
(i) Product has a manufacturing defect
(ii) Which existed when if left defendant’s control
(iii) And caused plaintiff’s injury
(iv)And plaintiff used the product in a reasonably foreseeable way
3) Design defect
(a) Product made in accordance with manufacturer requirements, but is defective
anyway
(b) Elements
(i) Product has a design defect
(ii) Which existed when left defendant’s control
(iii) And caused plaintiff’s injury
(iv)And plaintiff used the product in a reasonably foreseeable way
(c) Two standards
(i) Consumer expectation test:
Did the product meet expectations of the ordinary consumer?
(ii) Cost-benefit test (aka: risk-utility test):
Do the risk and utility of the product balance appropriately?
It typically does NOT if alternative, reasonable alternative designs
existed and were not used
(d) Warnings will not suffice if a product is dangerous
4) Failure to Warn/Lack of warning
(a) Foreseeable risk of harm NOT recognizable by the ordinary consumer AND lack
of or inadequate warnings that would have helped to reduce risk
(b) Exception to liability
(i) Prescription drugs – learned intermediary rule
Discharge of the duty to warn about side effects by informing the
physician
Exception when intermediary unlikely to intervene or physician
involvement is minimal
5) Proof of defect when item was destroyed (like res ipsa loquitor)
(a) Must show that the product ordinarily only fails due to a defect and no other
causes might account for the failure that led to injury
6) Damages
(a) Actual injury and property damages
(b) Not purely economic loss
7) Defenses
(a) Comparative
(b) NOT contributory if use was foreseeable, albeit misuse, modification or alteration
(c) Assumption of risk
(i) Complete bar
(d) Compliance with government standards
(i) Partial defense
(ii) But failure to comply can help establish defectiveness element
(e) Contract-based defenses (disclaimer, notice, etc)
(i) NO bar to recovery
C) Breach of warranty (purely economic damages OK)
1) Express Warranty
(a) Seller’s representation of fact as part of the basis of the bargain
(i) Can be in an advertisement
(b) Defenses
(i) Assumption of risk
(ii) Comparative
(iii) Failure to give timely notice
(iv)Certain product misuse
(v) NOT contributory
(vi)NOT disclaimers
2) Implied warranty of merchantability
(a) That the product was fit for its ordinary purposes
(i) Warranty given by a merchant
(ii) May be silent warranty
3) Implied Warranty of Fitness for particular purpose
(a) Must be more express
(i) Merchant affirms the product will work for a specific use, or
(ii) Knows of the customer’s misunderstanding and merchant is silent
4) Damages
(a) Personal and property injury
(b) AND PURELY ECONOMIC damages too
V) Nuisance
A) Private nuisance Elements
1) Conduct
(a) May be intentional, reckless, negligent, or whatever
2) That substantially and unreasonably interfered
(a) Objective reasonableness test in the community
(b) Hypersensitivities do NOT matter
(i) Note: beware for questions that look like hypersensitivity, but are not
If the sensitivity is one that is common to many, then it does not count as a
hypersensitivity
(c) Injury inflicted must outweigh benefit to defendant
3) With use and enjoyment of property
(a) Anyone with a possessory right has standing
(i) NOTE: an owner not living on the premises and therefore not in possession. A
defendant will NOT be liable to someone for whom the nuisance is not
substantially and unreasonably interfering with their use and enjoyment
B) Public nuisance elements
1) Unreasonable interference
2) That affects a right common to all members of a community
(a) Only government may bring suit unless member of the relevant community
suffers unique personal injury
C) Damages and remedies
1) Actual damages
(a) Includes any depreciation of value
2) Injunctive relief (dependent on hardships, unless nuisance was purposeful)
3) Abatement (self-help)
(a) Private: injured persons have a right to enter property to remove nuisance with
notice and refusal
(i) Level of force must be reasonable
(ii) Self-helper liable for actual damages caused in removal
(b) Public: No right of abatement unless suffering a unique injury
D) Defenses
1) Depend on level of culpability
(a) If negligent, negligence defenses apply
(b) Likewise if intentional, intentional defenses apply
2) Compliance with regulation (partial defense)
3) Coming to the nuisance
4) Blocking access to light is not a nuisance
VI)Defamation
A) Elements
1) Defamatory, false language
2) Concerning the plaintiff
(a) Can be an organization or corporation if small enough to be identified
3) Published to a 3rd party who understood defamatory content, and
4) Causation
5) damages to plaintiff’s reputation
B) Defamatory language
1) Diminishes respect, esteem, or good will, or deters others from association with
2) May be defamatory on its face (explicit), or by innuendo (when taken in context or
with extrinsic facts)
3) MUST be false
(a) And defendant knew it was false, unless
(i) About a public figure or official, requires malice and either
Knowledge of falsity, or
Reckless disregard of falsity
(ii) Private person
On matters of public importance
Knowledge of falsity, or
Negligent disregard of falsity
All other private matters require only
Negligence as to truth or falsity
(iii) Made by a journalist
Requires negligence as to truth or falsity
4) Forms
(a) Libel = written
(b) Slander = spoken
C) Of or concerning plaintiff
1) Reasonable person standard
2) Concerning particular plaintiff
3) Holding up to scorn and ridicule
D) Publication
1) Only need be intentional or negligent communication to someone else
(a) But not if the party learned of it through no fault of the defendant (eavesdropper)
2) It IS communicated when the speaker could reasonably foresee the statement being
overheard by a third party (ie: crowded room, etc)
E) Causation
1) Fault depends on who the victim is
2) Public figure or official
(a) Actual malice required
(i) Defendant knew of the falsity or
(ii) Acted with reckless disregard for truth or falsity
3) Limited public figure, one who voluntarily enters a public controversy
(a) Treated as a public figure with regard to statements concerning the public issue
(b) As a private figure otherwise
4) Private persons
(a) Statements on matters of public importance
(i) Must be false and
(ii) Negligently or maliciously made
(b) Other matters
(i) Require only negligence as to truth or falsity of the matter
F) Damages
1) Libel:
(a) general damages presumed
(i) not awarded to public figures on matters of public concern unless there was
malice
(ii) not presumed if extrinsic facts necessary to prove defamatory nature, if this is
the case, special damages must be shown
(iii) but not when statement would have been slander per se if proven
slander per se
re: abilities in profession, business, or trade
unchastity of a woman
about a loathsome disease
charges guilt for crime of moral turpitude
(b) special damages may also be recovered for economic loss
(c) personal injury, including emotional distress
2) Slander
(a) Special damages must be proven unless slander per se
G) Defenses
1) Truth = complete defense
2) Consent = subject to scope
3) Privileges
(a) Judicial proceedings
(b) Legislative proceedings – speech or debate clause
(c) Spousal communications
(d) Media entities required to publish
4) Qualified privileges (can be lost with malice)
(a) About an important public interest
(b) In the interest of the publisher/defendant
(c) In the interest of the third party/recipient of the communication
VII) Invasions of privacy
A) Misappropriation of the right to publicity
1) Unauthorized use
2) Of an individual’s image or likeness
3) For commercial gain
B) Unreasonable intrusion on affairs or seclusion
1) Intrusion (physical or otherwise)
2) In private affairs, solitude, seclusion
3) Objectionable to a reasonable person
C) False light (requires malice if a public interest matter)
1) Making objectionable facts
2) About the plaintiff
3) That casts them in a false light
4) Objectionable to a reasonable person
D) Public disclosure of private facts
1) Elements
(a) Public disclosure
(b) Of private facts
(i) Must be true facts
(c) Which a reasonable person of ordinary sensibility would object to
2) Defenses
(a) NOT truth, because it must have been true
(b) Disclosure was of newsworthy or legitimate public interest
E) Defenses
1) Absolute and qualified privileges apply as in defamation
2) Consent
(a) But not mistake as to consent
3) Truth NOT a defense in invasions of privacy
VIII) Misrepresentation
A) Elements
1) Misrepresentation of FACT
(a) Omission or statement
(i) Omission only if duty to disclose arises
Active concealment or failure to correct deception
Special relationship
2) With scienter
(a) Intentional or reckless
3) Intent to induce plaintiff to act on the basis of the representation
4) Causes plaintiff to act
5) Plaintiff reliance was justified
6) Damages
(a) Actual economic loss
(b) Consequential damages if proven with certainty
(c) NO nominal damages
B) Negligent misrepresentation
1) Elements
(a) Careless misrepresentation
(b) Breaching a duty owed
(c) Causing justifiable reliance
(i) Not liable for an unforeseeable use of the misrepresentation, even if aware of
the third party
(d) And damages
(i) Out of pocket reliance costs
(ii) Consequential damages with certain proof
2) Typically limited to commercial transactions
3) Negligence defenses available
IX)Business torts
A) Intentional interference with business relations or contracts
1) Elements
(a) Defendant knows of contractual (not at-will) relationship or valid expectancy of
business
(b) Intentionally interferes
(i) Can be prevention or making performance more difficult
(ii) In excess of fair competition and fair expression in the marketplace
(c) Resulting in loss of contract or valid business
(d) And damages
2) Privilege if it is a proper attempt to obtain business or to protect defendant’s own
business interests, especially where only an expectancy was involved
3) NOTE: be careful when dealing with an attorney-client contract; a client is always
entitled to institute settlement proceedings on their own without their attorney. The
defendant party will only have committed tortuous interference with contract if
actively pursued settlement despite representation of counsel.
B) Theft of trade secrets
1) Valid trade secret
2) With reasonable precautions to protect it
3) And Defendant acquired it by improper means, intentionally
4) Damages
(a) Actual damages
(b) Punitive, if appropriate
(c) Emotional distress
C) Trade libel
1) Injurious statements
(a) Publication
(b) Derogatory
2) To business or products
(a) About title or quality of business
3) Damages to a business relationship
(a) General, not special
X) Wrongful institution of legal proceedings
A) Malicious prosecution
1) Elements
(a) Intentional and malicious
(b) Institutes, pursues, or causes to be instituted
(c) For improper purpose
(d) A legal action without probable cause
2) Prosecutors and judges immune from civil liability
B) Abuse of process
1) Misuse of the power of the court
2) Damages must be proven