TORTS OUTLINE – HERIOT I. Battery:

a. Acts intending to cause a harmful or offensive contact with the person of the other or 3rd person or an imminent apprehension of such a contact and

b. Harmful offensive contact with the person of the other directly or indirectly results

i. Intent: intent to harm NOT necessary, substantial certainty (effect will occur), act must be intentional but consequences need not be.

ii. Offensive act: reasonableness std.iii. Doctrine of transferred intent : mean harm to third

person but accidently harm another person accident is still battery.

c. Intenti. Vosburg v. Putney: boy kicks another boys knee

1. Eggshell caseknee2. Doesn’t not have to be foreseeable harm3. Intends contact that he should have or would

have known to be offensived. Contact

i. Only need to intend to contact P (foot to knee) ii. Contact not necessary as long as create imminent

apprehension of contact. iii. D still liable even if harm not intended or

foreseeable. e. Damages

i. Nominal damages (token sums): 1. intended harms (token sums) even if P

cant show suffered harm. 2. No awards for negligence.

a. Mental Disturbance Fisher v. Carrouselhumiliation

ii. Punitive Damages (punishment): 1. Intentional tort (not all) 2. ONLY IF outrageous/malicious.

f. Defenses to Intentional Torts i. Consent

1. Only intentional tort cases (not negligence)a. Lack of consent (except trespass)

P’s prima facie

2. Implied a. Objective manifestation: if D thinks

P consented it will hold even if P didn’t. (reasonable person test)O’brien v. Cunard S.S-2 vaccinations held for D.

b. Subjective manifestations: if P(consent not explicit-favor D)

c. Custom – custom to fish small pongno trespass if no sign says otherwise.

d. Inaction-D says I will kiss you and p does nothing (OK)

3. Lack of capacity to consent= no object. manif. (child-parents, intox., unconscious)

a. Exceptions: Emergencies, unconscious, consent not indicated, reasonable person would consent)

4. Beyond scope of consenta. Surgery: one surgery not any

surgery- exception: emergencyi. appendicitis and treated for

ovarian cysts) b. Informed ConsentBang v. Charles

T. Miller- Went in for stream and had cords cut no immediate emergency to not inform

c. Athlete consenti. Within scope-not beyond-

Hackbert-intentional harm (if negligent/reckless no recovery for P- understands customs/rules of game.)

5. Assumption of riska. P held to assume risk of rule

violations- no recovery for P6. Consent due to mistake (P agrees to have

with sex with D if no herpes, D doesn’t know he has it- consent good)

1

TORTS OUTLINE – HERIOT a. Mistake known by D (lies)- no

consentb. Collateral matter: mistake induced

by D makes consent bad only if mistake is related to the contact.

c. Medical – d. Misrepresentation: D doesn’t

inform/misrepresents P of risks –no consent

e. Nondisclosure: fail to mention = negligence – D must show this is acceptable practice

7. Consent to criminal acts e.g fightinga. Usually consent ineffective

(recovery allowed)b. Class protection:

i. E.g illegal fighting protects contestants P injured right to recoveryHudson v. Craft

ii. Statutory rape- no consent ii. Defenses of Law/Privilege (burden on D)- no

privilege of mistake (but taken in acct)1. Self Defense (burden on D)

a. Only against harmful/offensive bodily contact, confinement, imprisonment

b. When reasonable belief of threatreasonable person- Couvoisier v. Raymond (shooting at policeman not knowing)

c. Protection (NO retaliation, helpless adversary, verbal provocation,)

d. Imminent harm (reasonable not to avoid)

e. Degree of force: only that necessary to prevent harmliability for excess

f. Deadly force- no deadly force unless in danger of death/serious

harm (if can use lesser force must use)

g. Retreat- usually Duty to retreat first before deadly force unless in dwelling.

i. Cant shoot intruder unless other way to stopping

ii. Prevention- deadly force can be used to prevent MOST felonies-breaking/entering

h. Injury to 3rd person ok if entitled to self defense

g. Defense of others (3rd parties)i. Must use reasonable force only that is necessary

ii. Mistake of aggressor- usually no defense-NONE for negligent mistake (must prove it was reasonable to believe)

h. Defense of propertyi. Reasonable force

ii. Must made verbal demand before force (unless violent or harm likely)- aloow time to obey request

iii. Mistakes reasonable in certain situations1. Mistake to danger (using force) = defense2. Mistake of intruder’s privilege- no defense

even if reasonable (D thought P trying to steal boat and blocks P, causing injury to him- D liable)

iv. Use of deadly force – no right unless:1. threatened with death or bodily harm2. preventing felony- breaking and entering3. burglary (only on own dwelling)

a. not applicable to trespassersb. cannot kick out intruder if likely to

cause serious harm Ploof v. Putnam (D unmoor P’s boat during storm)

v. use of mechanical devises- can use only to extent that devises likely to cause serious arm- depends on intruder- if used on someone not intending to harm =

2

TORTS OUTLINE – HERIOT liability; if yes harm = no liability Katko v. Briney (Defended house with shotgun injuring P- no deadly force unless felony of violence-endangering human life) human life > property

i. Recapture of Chattel (property)- i. more ltd for recapture than existing property

ii. If mistake even reasonable- no privilege except in shoplifting

iii. can use reasonable force if not much time passed but NO DEADLY FORCE, if willingly part with property and has right to repossess- cannot use force

iv. usu. no recapture for good willingly parted with. v. Storekeepers can temporarily detain ppl with

reasonable suspicion of stolen goods-short pd. Time, no coercion, no arrest, no confession ltd to vicinity of store.

vi. May use reasonable force to recover goods on wrongdoer’s land if 1. taken with force 2. reasonable time and manner 3. if prop ends up on person land and they’re not at fault can enter land but liable for any damage. 4. Chattel onwer’s fault- cannot enter land must bring court action

j. Necessityi. Public necessity: prevent harm to public as a whole-

disasters (going into home to put out fire)ii. Private: prevent harm to third person or self

1. Harm to P’s property weighed against D’s danger trying to avoid Putnam v. Ploof

2. Must pay damages to property Vincent v. Lake Erie (tying boat to dock during storm and boat hits/damages dock)-ok to tie dock but must pay damages.

II. Actual Causationa. Rule: Liability ONLY for factual cause“But for”-

ALWAYS factual cause – broad standard- can be anythingb. Multiple negligence: When different acts combine for 1

injury each tortfeasor responsible Hill v. Edmondsc. Concurrent causes- 2 sufficient, indepe. concurrent causes

combineKingston v. Chicago (2 fires, 1 unknown

combine, D entirely responsible even if 1 alone wouldn’t cause fire)

i. Must be SUBSTANTIAL factor to be a cause-multiple causes factual cause

ii. 3rd restatement- multiple acts- each must be sufficient and concurrent = harm, if one not sufficient on own NO LIABILITY

1. two harms-separate- FIRST liable. (Kingston Hypothetical: two fires separated by weeks)

d. Proofi. P’s burden probable cause (doesn’t have to be

absolute)-e.g going down dark stairs probable and sufficient (even if may have fallen without lights)

ii. Hoyt v. Jeffries- P showed sufficient evidence for probable cause (chimney fire)

e. Juries allowed to make inferences as long as it is reasonableMedical malpractice- P shows that exposure to drug caused harm but doesn’t show overdose vs exposure caused harm- held for P-substantial factor

f. Scientific evidence Approachesi. Only what is “Generally accepted”

ii. Relevant even if rejected by majorityiii. Fed courtsmiddle approach

1. Must use sci method (can be tested); accepts new, unpublished but DOESN’T ACCEPT if not published but rejected.

g. Increased risk & actual damagei. E.g medical misdiagnosis (39% survival vs. 29%)-

held for O-can only recover for direct items of damage

ii. Dillion v. Twin state gas a electric (barbed wire fall) D liable for wire exposure. – liability left up to jury to decide

h. Increased risk not yet followed by actual damage (asbestos)i. Traditional view: P must show MORE THAN

PROBABLE for harm otherwise NO recoveryii. Emerging view recovery: allow recovery if P shows

REAL but less than 50% chance of harm in future

3

TORTS OUTLINE – HERIOT (discount for chance that harm will occur less or greater than 50%)

i. Double fault and alternative liability i. If two D’s, burden shifts to D to show other caused

harm Summers v. Tice (hunting shoot eye)j. Market share theory:

i. D is liable for their share of harmii. When many D and exact fault is unknown- D must

prove fault on their own- if cannot they are liable for their share Sindell v. Abbot (drug manufacturers)

1. Later courts found that companies cannot escape culpability if sold drug but not to partic. P Hymowitz v. Eli Lily

iii. Use national market share vs. local market sharek. Joint-and-several

i. Any one of many D’s is held responsible for all damage

l. Enterprise liabilityi. Corporations cooperate with one another-not

unreasonable to hold them all liablemore likely to use joint and several liability.

III. Joint Tortfeasorsa. Joint-and several liability (Traditional rule)

i. If more than 1 proximate cause and harm is indivisible (cant tell whose fault)- each liable for entire harm

ii. P can recover from either 1 or both – up to P’s discretion even if more one’s fault than another

iii. If one D is BK, recovery falls on other D. 1. Applies to concurrent (indpendt acts concur)

and joint (acted together in concert) iv. Trend to cut back on joint and severalv. Does not apply to divisible (distinguishable injury-

can tell whose fault/share of responsibility)vi. Applies to those who act in concert car 1 and car 2

drag race, car 1 hits P and car 2 not involved BOTH held liable

1. Concert of Action: doesn’t have to cause accident-agreed to negligent action

2. Burden on D’s to prove to show proper allocation of harm if they cannot = joint and several liability

vii. Applies to successive incidents (one over period of time, another cause – pollution for ten years and another factory creates pollution another ten years) burden on D’s if not J&S

viii. Overalapping Liability e.g D1 hurts P’s leg, D2 Dr. operates leg and negligently treats leg = amputation) D2 only responsible for worsening , D1 is proximate cause of ENTIRE harm

ix. Each liable under J&S death, fires (Kingston v. Chicago) UNLESS can show apportionment.

x. ONLY ONE RECOVERYcannot go to D1 after recovered entirely from D2

xi. Release: P can give release (absolve from all liability) traditionally releases ALL d’s

xii. Covenant not to sue: doesn’t release all only one make deal with

1. Most states relieve all dfts if release is silent on the question

b. Contributioni. IF J&S D (if paid more than own share) can get

partial reimbursement from other D’s 1. Reinstatement allows contribution UNLESS

other had settlement or release ii. Most states adopted comparative negligence

contribution proportional to fault 1. Damages: 100,000; D1: 30% 30,000; D2:

60% 60,000; P: 10%2. S&J P seeks 90,000 from D1 D2 can

recover 60,000 from D2 (his share)iii. Limitations

1. No contribution from co-tortfeaseors2. If contribution dft has defense no

contribution and must have liability in first place

3. Doesn’t work in workers comp situations

4

TORTS OUTLINE – HERIOT iv. Settlements

1. Unless there is statues against- those WITH settlements can get get contribution from other D’s but bears burden to prove their liability and reasonable settlement

2. Traditionally those who settled CAN be sued for contribution = less incentive to settle

a. Move to not allow contribution against settled D- P’s recovery thus reduced (either Dollar amnt or comparative share)

b. Ex. D1: 45% settles 20,000; D2: 35%; P: 20%

i. Comparative D2 gets $45,000 credit (portion)

ii. Pro Tanto D2 gets $20,000 credit

c. Indemnity: shifts liability entirely vs. contrib. (sharing)i. Usually when there is a big difference in

responsibility ii. Vicarious liability/Respondeat Superior: e.g

employer held respon. for employee actions (doesn’t apply to contractors)can shift ENTIRE AMNT from employee (indemnity)

iii. Can get indemnity from anyone higher up chain (retailer from manufacturer, Pilot vs. seller)

iv. If 2 D’s, 1 negligent and 1 intentional Neg D1(negligent) can indemnify by D2(intentional)

d. Hybrid systems e.g D1 loans car to D2 knowing he is violent, D2 runs over gf)

i. Hybrid Joint and several with reallocation: if one is judgment proof court reallocates damages to other parties in proportion to their comparative fault

1. Damages: 100,0002. D1: 40% (insolvent);3. D2: 25%; D3: 25%; P:10%

a. D2,D3= 50/60 of 100,000 (83,333) P,D1,D2 share burden

ii. Hybrid based on threshold %: if one’s fault is over a threshold = joint and several liability; less than threshold severally liable

1. Threshold 25%; damages: 100,000; P:10%(under threshold) 10,000; D1: 20% (under threshold) 20,000; D2: 30% (over threshold) 30,000+40,000(D3’s contrib) = 70,000 ; D3: 40% insolvent

iii. Based on type of damages: Economic harm = joint-and-several; non-economic = several damage

1. Damages 100,000 eco: 40,000; emo: 60,000; D1: 30% 40,000 (eco/J&S) & 18,000 (Emo/several- 35% of 60,000); D2 70% insolvent

e. Pure Several Liability: regardless nature of case, liability only for share of responsibility

IV. Vicarious liabilitya. Employee/Employer/Respondeat Superior

i. Applies all tortsii. Employee: subject to control of employer

(supervision, dominion and control) vs. independent contractor (own boss)nature of work not “written contract”

iii. Liability if act within scope of employment intent to further employers business purpose

1. Usually travelling to and from work not applicable

2. “frolics and detours” must be reasonably foreseeable (e.g sailor damage) for liability

a. applies to smoking/toilet and acts explicitly forbidden still liable BUT can be used as evidence that employee acting beyond scope.

b. doesn’t apply to personal motives (vendettas) unless there is duty of care (passengers in public transit)

3. employer is ALSO liable for own negligence in addition to vicarious liability

5

TORTS OUTLINE – HERIOT b. Independent Contractors

i. Generally not vicariously liable 1. Exceptions: ultrahazardous materials used,

peculiar risk of physical harm, work public roads (road, sidewalk, park), person hiring is landowner

c. Joint Enterprise i. Short, specific, partnership negligence of one

enterpriser imputed on other- auto accident = liability furthering business (common business)

1. Doesn’t apply social trips2. Passengers cannot sue drivers for negligence

d. Bailment and Consent Statutes i. Automobile consent statutes

1. Car owner liable for negligence of those who use their car even with permissionUNLESS beyond scope ofconsent

ii. Family purpose doctrine: car owner liable for allowing family member to use carfurther family purpose.

iii. Automobile liability insurance policy: covers owner and household members and those with consent to use car.

V. Negligence: Duty of Care and Proof of Breacha. Components

i. Duty : 1. avoid unreasonable care.

ii. Breach of duty 1. would reasonable person exercise care?

iii. Cause in fact 1. Breach of duty cause

iv. Proximate cause 1. Link between negligence and harm

v. Actual damage 1. REAL damage must occur

b. Unreasonable risk: Was D-UNREASONABLE risk of harm? i. Judged at time occurred- no hindsight (cause 25 yrs

after act must show PROXIMATE cause)

ii. Inherently dangerous object = negligence (leaving gun out vs. leaving club-used as weapon-not inherently dangerous)-

1. Leaving club out would be negligence if knew leaving it around someone extremely dangerous.

iii. Balancing Test: risk so unreasonable- would reasonable person recognized risk and avoid it? Jury decides on own cost-benefit analysis

1. B < L x P a. B: Burden; L: gravity of harm; P:

probability of harm b. US v. Carrol towing P’s boat

broke from moorings when D shifted. D argue no one on board P’s boat to oversee risk mooring undone and danger of harm high enough to have watchman (even though burden is high too).

2. More serious the harm, less probability has to be e.g dealing with fire (serious/inherently dangerous)

3. Burden depends on cost to him AND social utility of act

4. Risk is unreasonable and act negligent IF risk > utility of act

5. Warnings- if none given can be negligent known risk, know warning may reduce risk

a. Does NOT immunize D eg. Warn before throwing TV out window still negligence

6. Focus on level of care not social utility of engaging in act (e.g doctor driving and hitting someone vs. teen joy riding “Carefully” but hits someone is NOT liable)

iv. Strict liability: ultrahazardous acts responsible for ALL injuries proximately causes.

6

TORTS OUTLINE – HERIOT

c. Reasonable personi. Objective Standard: would reasonable, ordinary

person have acted as D if in their shoes? (balancing test too abstract- use this to instruct juries)

1. Physical disabilities- would reasonable person with those attributes act similarly?

a. Heart attack/epilepsy if sudden to person who thinks in good health NO liability vs. person who is prone to seizures = liability.

b. Blindness- must be more careful than reasonable person- this taken in acct

2. Rejects strict liability (takes into acct. physical characteristics)

3. DOES NOT apply to mental characteristics (insanity, stupid- still liable) too difficult to employ would be diff for each person

a. Children mental state and age taken in consideration

4. Intoxication NOT defense5. Restatement: Children <18 subjective

standard (<5 immune)a. NOT subjective standard if children

partaking in DANGEROUS adult activities but IS traditionally subjective for those dangerous activities engaged by children (hunting)

6. Things a reasonable person should know:a. Ordinary experience, customs (even

if stranger to community), duty to investigate (condition of tires), memory, distractions NOT reasonable defense

b. Types of customsi. Protect self and property

ii. Protect persons/property of contract (customers, employees, loved ones)

iii. Strangers- general duty but no incentive

7. Custom evidence allowed but is NOT conclusive TJ hooper (radios on boat could have saved cargo in storm- crt ruled custom not conclusive up to jury-against D)

a. If other side no argument against evidence usually can win

b. Under custom- Community is decision maker

8. Advances in technology create new negligences- once not now are (guardrails)

ii. In emergencies – not held to same standards UNLESS D caused the emergency D must also STILL act reasonably for someone in emergency (swerving into shoulder instead of traffic) still MUST act reasonably under circumstances

1. different standard for those trained (School bus driver)

iii. MUST anticipate acts of third parties drunk drivers, children)- parents have direct liability – duty to supervise children

1. Special Relationships : burden on D to prevent acts of third persons Tarasoff v. UC (psychologists and patient relationship)

2. Public Premises Liability: public premises have duty to protect public from crimes foreseeability of 3rdpersons

3. 3rd person crime foreseeability Test:a. Totality: takes all factors in

consideration – prior smaller incidens, level crime surrounding area)too much burden on business owners

b. Balancing Test: Forseeable harm vs. burden of implementing duty (surveillance guards)

7

TORTS OUTLINE – HERIOT i. Foreseeability of harm must

be HIGH for high burden iv. Misrepresentation

1. Negligent statements physical harm- treated as any other negligence

2. Person given false info can sue as well as those relying on the info doesn’t apply to bystanders overhearing

d. Malpractice i. Rule: those specialized must act with skill

commonly possessed by members of profession in good standing

ii. Only liable if act without requisite skill/competence iii. Minimum standards shown through Expert

Testimony1. Difficult- experts don’t want to testify

against eachother AND must show D didn’t act by accepted conduct

2. Standard: minimally qualified member in good standard NOT average member

iv. If negligence so bad that lay person can tell- expert testimony not needed

v. Experts judged before on standard of communitymoving toward national standard

1. Objective NOT subjective standard- Did D match standard of care common in that profession?

vi. Informed consent (disclose treatment risks) itself negligence.

1. P must show if informed would have declined treatment (courts differ reasonable person vs. patient would decide)

2. Exceptions- emergency or patient high strung- disclosure not necessary

vii. Novice held to same standard even if inexperiencedP assumes risk of inexperience

e. Automobile Guest Statutes: drivers not liable to nonpaying passengers UNLESS grossly negligent/willfully negligen/reckless (greater form of negligence)

i. Brown v. Merlo- CA statute unconconstitional- denies recovery for few collusive suits – only 9 states have statute

ii. Driving while intox = gross negligence-no guest statute.

f. Two forms of riski. Trespass- Direct harms/Stric Liability

1. Once mvmnt start act before comes to resta. Treetreetreekill someone (no

rest)ii. Tresspass on the case/Action on the case-indirect

harms/Negligibility rule1. Hit treerestinjury (INDIRECT)

iii. Brown v KendellP reasonable care

P no reasonable care

D reasonable care

D wins D wins

D no reasonable care

P wins D winds

iv.g. Negligence Per Se (violation of statute)legis is decision

makeri. Unexcused D cannot show standard too high

ii. Martin v. Herzog(Cordozo) Statute says cant drive after dark w/o lights P drove without lights and ran into D- no recovery for P-negligence per se = contrib. negligence.

iii. 3rd restatement:1. D violate statute 2. Designed to protect against type of

accident a. Gorris v. Scott (statute requires pens

to protect spread of disease not animals going overboard)

3. Victim w/in class statute intended to protect

a. e.g statute protects employees only- harm to visitors and employees

8

TORTS OUTLINE – HERIOT negligence only to employees not visitors

iv. General interest of state NOT particular person no negligence per se against specific person

v. “Blue law” prohib. stores open Sunday, if store open not conclusive negligence if someone shops and hurts self NOT negligence per se- statute protects public day of rest not harming by going to store on Sunday

1. some statutes protect public AND specific ppl (bar brawl- fighters and public)

vi. Causal link- show violation injury 1. e,g: P sues D injury resulting from not

showing warning on Drug bottle. D need show P didn’t look at label to show no causal link

vii. Excuses (voids NPSevidence negligence)1. Childhood, physical disability/physical

incapacitation (heart attack driving)2. Ignorance of facts (can’t work w/n 10ft

power line- didn’t know or could know w/in 10 ft)

3. Reasonable attempt to comply 4. Statute presented in confusing way5. Complying with law = greater risk of harm

a. Tedla v. Ellman – more dangerous to walk toward traffic (more traffic) walked on other side excused

b. Standard of care defined vs. no definite standard of care

6. Obsolete/old legislation viii. Contributory negligence per se

1. DOESN’T apply to absolute duty (child labor laws)

2. Must meet all factors of NPS FIRST before contributory if doesn’t can be used as evidence for negligence.

ix. Complying with statute doesn’t mean no negligence esp if situation is more hazardous

h. Res Ipsa Loquitur (Thing speaks for itself)

i. Byrne v. Boadle- drop flour from roof = evidence of negligence

ii. Requirements: 1. No direct evidence of Ds conduct 2. Event ordinarily doesn’t occur through

negligence a. Show most of time- negligence is

cause of these events (airplane crashes)

b. Need not negate other causesc. > 50% chance negligence

3. In D’s ctrl a. exclusive ctrl (no longer required)-

could be under someone elses ctrl (e.g buy used car bad brakes-manufacturer fault not yours)

b. MUST negate other possibilies to show D’s neg.

c. Multiple dfts:i. Special relationship usually

apply doctrineYbarra v. Spangard: appendectomy-back pain-multiple Dr’s cant show who fault

ii. Strangers- ordinary duty of care- if cant show who is responsible usually no doctrine.

4. Rule out P’s contribution a. Contributory neg. usually no

doctrine NOT always walking near construction immaterial when hit by falling beam- doctrine applied

5. (explanation of events more accessible to D) iii. P MUST show breach of duty still used as

instruction to jury doesn’t mean they required to find D negligent x

iv. 3rd restatement: type of accident ordinary of negligence of class of actors D is relevant member

9

TORTS OUTLINE – HERIOT 1. no: evidence D’s behavior, D’s ctrl, P

contribution v. D entitled to rebuttal

1. evidence of care shoots down directed verdict

2. Can also disprove elements of doctrine3. If cannot bring evidence of NON-

NEGLIGENCE P usually wins with directed verdict

vi. Typical cases1. Airplane, car crashes usually doesn’t

apply multiple cars VI. Duty:

a. Generally: care a reasonable person would exercise. i. Palsgraf duty to someone outside scope of risk

imposed by D’s negligenceii. Issue- whether D owes P duty to avoid this kind of

harm (emotional distress without physical symp?-usually no)

1. Different for owners and occupiers of land- b. Failure to Act (Omission)

i. General Rule: No liability for failure to act UNLESS special relationship creating obligation

1. Common Carriers and Innkeeperspublic transit/bus drivers

2. Business or other possessor of land (bus. Owners and visitors)

3. Employer with employees in – imminent danger, injured and helpless

4. School/students5. Landlord/tenants6. Custodian-those in custody (jailor/prisoner)

ii. If D creates dangerduty to warn- even if innocent1. Duty to exercise reasonable care to

prevent/minimize harm (hit and runs)a. E.g holding babies and first time

having seizure NOT negligent for seizure but if out of seizure and see baby on floor duty to care for child

iii. Co-Venturescommon pursuit

1. E.g jogging, camping etcduty to eachother iv. Assumption of duty:

1. If voluntarily assist (even w/o obligation) must reasonably care to keep P safe.- canot leave discontinue care if would make position worse.

2. By undertaking giving aid preventing others

3. Must act reasonably with careliable for maing injury worse.

v. Custom1. Erie Co. vs. Stewart- custom of having

watchman warn crossing of RR- held liable when he was missing – P relied on warning

vi. Promise to assist1. Verbal promise of care NOT enough no

contract BUT trend toward allowing promise w/o action enough

vii. Duty to control 3rd persons1. Special relationship (hospital patient, schoo-

pupil, parent-child, business-patron)2. Special relationship with 3rd partymedical

professional Tarasoff v. Regents of UC; ownder of carpederians and other drivers

a. If don’t know of danger not liable3. Good Samaritan act- makes those who

volunteer help in emergency free from liability

c. Prisoner Innkeeper relationship

10

TORTS OUTLINE – HERIOT d. Why impose this common law duty early on?

i. 1- Prisoner is cut off from usual means of defense 1. example of this- flying on airline (no usual

means of defense) ii. 2- without consent

1. there is consent to fly on plane iii. 3- defendant (jail) is in better position to control

risk iv. 4- dfndt put itself in that position v. 5- third parties are not in position to help

1. people on board flight are able to help but those that aren’t on board are not in position to help

vi. 6- third parties will assume dfndt is taking responsibility

1. airline has duty of “reasonable care” e. examples of this common law duty

i. restaurateur VII. Land owner occupiers

a. Trespasser (no consent/invitation)i. Duty keep from willful, wanton, intentional harm

ii. Invitees can become trespassers (keep out)iii. Exceptions to duty

1. Frequented trespass-use reasonable care/warn dangers (RR crossings)

2. Once know of trespass must use reasonable care

iv. Liability against Child Trespassers-restatement1. Know child likely to trespass2. Know cause unreasonable risk of injury and

action3. Child (youth) cuz of age didn’t

discover/realize harm4. Weigh benefit vs. riskbenefit must be

slight5. D failed reasonable care

b. Licensee (social guest/no business purpose)i. Duty keep from willful, wanton, intentional harm

ii. Duty to use reasonable care to warn known hidden dangers

iii. Duty keep from affirmative acts of negligence1. E.g Rowland v. Christian: social guest hurt

hand on broken faucet-D knew, failed warning/repair = negligence. – Usually no reasonable care to licensee’s- here there is

c. Invitee (business purpose)i. Duty keep from willful, wanton, intentional harm

ii. Duty to use reasonable care to warn known hidden dangers

1. If warn doesn’t negate liability or obligation of higher level of security

iii. Duty keep from affirmative acts of negligenceiv. Duty to use reasonable care keep property

reasonably safe (so invitees wont be exposed to danger)

1. Duty to inspect for hidden dangersv. Requires general business relationship

VIII. Proximate Cause (2 views)a. Direct Causation (trespass)

i. Liability only on direct result (no matter how unforeseeable

ii. Polemis (plank fallsparkfire ship1. Later overruled by Wagonmound

iii. Ryan v. Central R.R – D(RR) engine fire to wood shed and P’s house no liability – too remote argues Polemis = limitless liability

b. Forseeable/scope of riski. Liability to foreseeable injury, persons and

intervening causesii. Wagonmound

1. Ship oilwaterfire act came to rest-no direct result (even if foreseeable oil burns)

2. Trespass on the case with usual negligence3. Cordozo: foreseeability of injury necessary

for breach of duty 4. Polemis doesn’t apply

POLEMIS WAGONMOUND- Harm need not be - SOME HARM

11

TORTS OUTLINE – HERIOT foreseen IF direct result negligent act

- Like trespass writ with added negligence (doesn’t require ultimate harm is foreseeable

- Some harm must be foreseeable

- Actual harm need not be foreseeable

MUST BE FOESEEABLE

- Actual harm must be foreseeable

- (if its NOT direct result of D’s negligent act

iii. Palsgraf v. Long Island RR(trying to get on RR- drops package of fireworksscaleshit P) – no liability

1. Victim MUST be in foreseeable class of victims

2. Some harm must be foreseeable to that class a. Pltf not foreseeable no duty of

care to her (foreseeable victims-stranger, employee)

b. Andrew’s dissent- how far is foreseeable? – not proximate cause legal judgment-politics (more on view of direct causation-natural and continuous sequence)

c. 3rd restatement (Cordozo’s View)i. liability limited to those physical harms that result

from risks that made actor’s conduct tortious ii. BUT no separate rule for unforeseeable pltf’s

iii. Bars liability that outside type of harm risk of which made conduct negligent

d. Exceptions to Foreseeable-consequence approach i. Liable fore any additional unforeseeable

consequences-eggshell skull ii. P is rescuer

iii. Liable even if highly unlikely but foreseeable. 1. Wagonmound 2D liable because small

risk of fire from oil- some foreseeability iv. Liability for same general harm but not same

manner

v. P member of class of general foreseeability Negligent Act Anticipated Harm Actual Harm

Gorris Failure to pen animals

Spread of disease (did not happen) = no liability/ no proximate cause

Animals went overboard during storm

Polemis Placing plank over hold

Plank hit ship cargo or person (not bypassed- did hit something and caused fire) = liability/proximate cause

Fire (unacnticpated)

Berry Speeding Lose control of car or reaction time insufficient to control car (bypassed- vehicle lost ctrl) = no liability/proximate cause

Wrong place wrong time, tree falls not cuz of loss of control

e. Intervening Causes i. Supersede proximate cause of D if foreseeable or

kind of harm foreseeable. 1. weakening of foreseeable to “normal”

consequence (escape from harm rescue, aggravation)

a. Wagner v Intl R.R- NOT superseding because rescue is foreseeable-danger invites rescue x hurt on D’s RR P hurts self in rescue

i. UNLESS grossly negligent = superseding cause

b. D responsible for all injury that ensues even negligent medical treatment (amputate leg)- doesn’t apply to suicide

ii. Foreseeable acts of 3rd parties = liability iii. Unforeseeable intervention but foreseeable result-

same type of harm- not superseding

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TORTS OUTLINE – HERIOT iv. If intervening act is a crime usually superseding

cause v. Did D’s Conduct increase risk of intervening cause?

1. Yes yes liability, no superseding2. No no liability, yes superseding

IX. Special instances of nonliability for foreseeable Consequences a. Mental and emotional upset

i. Traditional impact rule 1. Negligent actphysical harmemotional

harm (incl pain) RECOVERY2. Negligent actemotional harm NO

RECOVERYii. Traditional impact rule

1. Negligent act physical harm economic harm RECOVERY

2. Negligent Act economic harm NO RECOVERY

iii. Problems with impact rule1. Negligent act physical harm emotional

harm RECOVERY2. Negligent act emotional harm relating to

likelihood of physical harm (almost injured) NO RECOVERY

3. Negligent Act emotional harm related to likelihood of physical harm and actual harm to someone else substantial emotional harm HORROR

iv. Mental Suffering w/o physical symptoms 1. Usually no recoveryabandoned by some

states2. At-risk P- exposure to toxin (aids) more than

probability contract illness for recovery 3. If some physical harm = recovery

v. Physical Injury w/o impact1. Emo. Distress physical

consequencesrecovery generally modern times (e.g almost hit by wagon = fright-miscarriage) –

vi. Zone of danger requirement (allows recovery for fear of self and others) abandoned- Dillion v. Legg (P not in zone of danger allowed recovery)

1. Limited with Thing v. La Chusa NIEDa. P closely relatedb. Present and aware of accidentc. Suffer emotional distress

i. Burgess (mother told son suffered brain damage at delivery)-Direct victim NOT bystander Thing doesn’t apply

b. Loss of Consortium i. Legal action for when spouse injured/died- loss of

companionship and serviceii. Doesn’t apply to parent-child relationship

1. Wrong Death Act- works same as consortium for children

c. Economic Harm i. Traditional rule- no recovery for pure eco loss w/o

physical harm. Barber Lines v. Donau Maru (spilled fuel in harbor-rerout shipment = loss)

ii. Modern reasonable measures to avoid eco damange to identifiable class (different than foreseeable)- foreseeable in particular (in circumstance where could be touched)

X. Defenses to Negligence a. Contributory Negligence

i. If pltf was negligent in any way-NO recoveryii. NOT a defense to INTENTIONAL torts- only

intentional1. More subjective analysis than dfts

negligence- more likely to take facts in P’s favor

2. Qualitative differences in behavior-recklessness met with recklessness

3. Last clear chancea. Defense to defense- you (D) had last

opportunity to dodge the harm i. P helpless or,

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TORTS OUTLINE – HERIOT ii. Inattentive

iii. Butterfield v forester – running into pole going fast on road-no recovery

iv. Most states abandoned for comparative negligencev. Excepions- statutes meant to protect class of people

(e.g child labor)b. Comparative Negligence

i. Compare negligence of P against Dii. Allocating damages between P and D

1. But if both 100% negligent and one is drunk-Drunk is judged more harshly

iii. Pure comparative fault1. P can recover no matter how GREAT fault

(e.g over 50%)iv. 50%

1. P only recover if </= to D’s v. How to apportion?

1. Causal apportionment-reduced by injuries suffered caused by D BUT not P (eg. Leg but not brain damage)

a. Comparative fault w/o causal apportionment- reduce p’s % from total damages regardless of who caused which injury

i. Total damages: 100,000; P:30%; D:70%; Brain (P:20,000; leg (D): 80,000. P recovers 70,000 (100,000-30%)

b. Comparative fault with causal apportionment

i. Held liable for both injuries but P not liable for those totally caused by D

ii. P recovers full 20,000 for leg and 80,000-70%- 56,000 for brain damage

c. Assumption of riski. Volenti non fit injuria

1. P aware of 1) the specific risk, 2) magnitude of risk, 3) P freely and voluntarily encountered risk

a. Should actually know of risk –NOT similar one

b. Voluntarily assume risk- not cuz there is not other choice/alternative (if there is a safer alternative and didn’t take might find assume risk

ii. Under contributory negligence-completely bars recovery to P, under comparative-reduces recovery

1. If D reasonably believes P voluntarily assumed risk-bars recovery to P (sitting where likely hit by foul balls)

a. Primary: D no duty to P bars recovery

b. Secondary: D has duty to P ordinary comparative negligence.

i. Knight v. Jewett (touch football amputate finger) in sports no duty to P UNLESS intentional harm or outside range of ordinary activity.

2. If P reasonable assumed risk no reduction in recovery (going in fire to save baby)

d. Immunities (all breaking down)i. Spousal: traditionally could not sue spouse- one

entity- also didn’t want collusionii. Parent child: did want courts telling families how to

runiii. Charitable: couldn’t use donation money for tort

purposesiv. Municipal: didn’t want taxes used for tort purposes v. Sovereign (“King can do no wrong”)

1. Federal Tort Claims Act (FTCA)a. Must be brought in federal court-

must make administrative claim first (e.g post office) and give them

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TORTS OUTLINE – HERIOT chance to settle case before goes to court

b. Can only sue for operational (enactment of program) NOT discretionary (based on public policy/testing)

XI. Trespass to land and nuisancea. Trespass to land

i. Intent like battery- no intent to harm but foot to knee is sufficnet

ii. Still liable if by mistake or even reasonable mistake. (e.g think its your land)

iii. Only nominal damages for intentional trespass where there was no harm.

iv. D is liable for all consequences of trespass no matter how unpredictable

v. Indirect invasions1. If tangible object enters land even though D

didn’t, still trespass, 2. If D did not intend object to enterstill

invasion 3. Trespass on the case: indirect entry

a. P must show intent, negligence or abnormal dangerous activity

b. Actual harm must occur. c. No strict liability here or nominal

damagesb. Public nuisance: interference of right to general public

i. MUST exhibit substantial harm ii. Must injure public at large

1. Private citizen can recover if suffer different kind of harm NOT just more harm than general public

iii. Restatement: 1. Pub nuisance is unreasonable interference

with right common oto general public2. Unreasonableness factors

a. Conduct involves significant interference with public health,

public safety, public peace, public comfort ad convenience

b. Conduct is allowed by statute , ordinance or admin regulation?

c. Continuing nature of produced permanent or long last effect.

3. Who can sue:a. Individual action – harm of kind

different from members of publicb. Public official, agency or represent

state or political subdividsionc. Standing to sue as a representative

of general publicc. Private nuisance

i. Vs. trespass (interference with possession of prop) nuisance is interference with use and enjoyment (not physical like trespass, includes smells, noise, dust)

ii. Who can sue- those who have interest in land (tenant, members of family)

iii. P must prove:1. Interference was substantial2. D’s conduct-

a. Negligent (balancing test utility vs. harm), i

b. Intentional (know with certainty interference will occur)- MOST are intentional -even if with due care if knew still intentional Jost v. Dairyland

c. or abnormally dangerous = strict liability

iv. Measuring unreasonableness –in addition to conduct MUST be unreasonable

1. Restatement Overview a. P’s Harm > utility to Db. Harm substantial and is unfair to not

be compensated- “financial burden of compensating does not render infeasible the continuation of the conduct)-no matter how socially

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TORTS OUTLINE – HERIOT valuable if harm substantial D MUST pay-Jost v. Dairyland

2. Restatement: General Rulea. Subject to liability if invasion of

another’s interest in the private use and enjoyment of land and the invasion is either

i. Intentional and unreasonable or;

ii. Unintentional and otherwise actionable under rules controlling liability for negligen or reckless conduct, or for abnormally dangerous conditions or activities

3. Unreasonableness of intentional invasiona. Gravity of harm outweighs utility of

actors conducti. Extent of harm

ii. Character of harmiii. Social value to

use/enjoymentiv. Suitability of use/enjoymentv. Burden on person harmed or

avoiding harmb. Harm caused by conduct is seirous

and financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible

i. Social value of conductii. Suitability of conduct to

localityiii. Impractibility of

preventing/avoiding invasion

v. Remedies 1. Compensating damages

2. Injunction (order to stop)- must show harm > utility Boomerv. Atlantic Cement Co. $ to close plant/loss of jobs cancel injunction- as ong as D pays P for damages.

3. Self-help abatment- can go onto D’s land to take or stop nuisance with force BUT should give complaint

vi. Defenses1. Contributory negligence2. Assumption of risk – “Coming to the

nuisance” P bought land with prior knowledge of nuisance Spur v. Webb – creating city near farm- usually no damages/injunction BUT involves 3rd prty (Residents). Under coming to nuiscance P compensates/ indemnifies D for moving costs.

XII. Strict liabilitya. Wild/dangerous animals

i. Domesticated- only if dangerous propensities ii. If usually calm and bites- no liability

iii. Injury must be due to dangerous characteristic of animal- cant sue for bumping into a blind bear

b. Ultrahazardous activities i. Rylands v Fletcher

1. D builds reservoir on their property non negligently and it breaks- water floods P’s property

2. Lower crt- keep something mischievious on property should be liable for its consequences

3. Higher court- held- liability for non0natural use of land if it had been natural (collected) would be liable

a. What is natural? unusual/uncommon use gave rise to ultrahazardous – extremely dangerous activities-Siegler v. Kuhlman (in transport spilled gas on highway)

16

TORTS OUTLINE – HERIOT ii. 3rd restatement

1. foreseeable and highly significant risk of physical harm even if reasonably careful by ALL actors

a. e.g gas companies not strictly liable because use of reasonable care by all parties avoids foreseeable and risk of harm

b. PSI energy (asbestos)2. not of common usage

iii. Cannot be used with res ipsa loquiter iv. Must still show actual cause and proximate cause

c. Limitations to strict liabilityi. Only applies to kind of risk that made activity

abnormally dangerousii. No recovery for sensitive P (frightened cat Foster v.

Preston Mill)iii. No contributory negligence UNLESS P voluntarily

and unreasonably subjects to danger 1. Assumption of risk- applies whether P

volunteered reasonably or unreasonablyiv. Comparative negligence still applies- reduces P’s

recovery XIII. Damages

a. No liability for accident even if negligentb. Any cause of action result in death- common laws will not

hear cases againt and byy dead peoplec. Seffert v. La Transit

i. Courts of this error big on broadening liabilityii. Traynor wants to keep damages down

iii. Collateral source rule: insurance takes care of damages- this evidence never brought into court- D cannot complain that you use 3rd party to pay

1. Necessary because the “source” has right of subrogation (substitution of one for another)

2. Pltf paid for collateral source and double recovery appropriate

3. Designed for deterrence-XIV. Products liability

a. Timeline

i. Winterbottom phase: privity of contract rqd1. Privity-directly contracted with D-no privity

no suitii. MacPherson Phase (negligence): Privity not

ordinarily required1. Cordozo reject privity for imminent

danger/inherently dangerous- can sue without privity anyone who negligently manufactures a product that proximately causes injury is liable

a. Retailers liable if knows/should know of danger & does not warn; usu. no duty to inspect; sells to minor incapable of using safely (weapon)

iii. Escola/Gleenman/Sectioni 402A: Strict Liabilityiv. Rise of distinction between manufacturing and

design defect warning a) wilderness Pd b)3rd restatement

b. Warrantyi. Express: express represent certain qualities if no

qualities can sue for breach of warranty Baxter v. Ford Mortor Comp (advertise “shatter proof glass”-shattered-liable)

1. Applies to public, bystanders/passers by2. Acts like strict liability

ii. Implied: fact that goods are merchantable/for sale implies warranty- fit for ordinary purposes-implies it will do job that you intend

1. Requirments:a. Seller is businessperson b. Usually sells these goods

2. Applies to final purpose and those reasonably expected to use it

iii. Defenses to warranty 1. Disclaimers (must be noticeable)2. Limit remedies (repairs, replacements)3. Notice of breach- buyer must notify seller

any breach of warranty iv. Strict Liability

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TORTS OUTLINE – HERIOT 1. Greenman v. Yuba- Traynor says failure to

notify of breach doesn’t bar recovery for P- warrantyies doesn’t protect consumers

2. 402 Aa. (1) one who sells product in

defective condition unreasonably dangerous to uer/consumer or property is subject to liability for physical harm caused to user/consumer or property if:

i. seller engaged in business of selling each product

ii. expected to and does reach user/consumer without substantial change in condition in which it is sold

b. applies even ifi. seller exercised all possible

care in prp and sale of product (not negligent)

ii. not bought product from or entered into contractual relation with seller

3. 3rd restatement a. in business of selling/distributing

products whee it may be defective subject to liability of inadequate intructions or warnings

i. manu defect: departs from intended design

ii. defective design-forseeable risk of harm could be reduced by RAD omission of RAD make product not reasonably safe

iii. inadequate instruct or warnings- forseeable risk of harm could be

reduced/avoided by instruct/warnings

4. unavoidably unsafe productsa. prescription drugsb. cigsc. handguns

i. 2nd restatement no liability if reasonably warned

ii. 3rd utility > risks not defective; utility< risks defective

5. No duty for unknowable dangers (at time) e.g asbestos no failure to warn Anderson v. Owens fiberglass

6. Obviousness is not dispositive-factor – if P can show RAD that reduces/prevents injuy can win

7. P must show in strict liabilitya. Made sold by Db. Defective

i. Res ipsa loqituer- would not ordinarily occur if not for defect Escola

c. Caused Injuryi. Proximate cause - Union

Pump v. Allbritton d. Existed when left D’s hands

i. w/o proof of specific defect can use res ipsa-

1. ordinarily occurs as product deft

2. no evidence pointing to other causes

3. need not establish manu/design defect

8. Family members of buyers and bystanders can sue w/o privity under strict liability

v. Design Defects1. Design risks vs. Utility

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TORTS OUTLINE – HERIOT a. Used under 3rd restatement – trend

away from strict liability toward negligence

2. Reasonable consumer expectation for safety used for reasonable intended purposes

3. P must show RAD-other design safer – general evidence

a. Cost and utility heavy measures- double price or affects utility

b. Usually no liability if no other safer product existed at time- BUT not dispositive- could be liable if P shows another design could have been adopted.

4. Types of claimsa. Structuralb. Absence of safety featuresc. Suitability for unusual purposes

i. No duty for unsforeseable misuse but should usually safeguard against foreseeable misuse

d. Car manufacturers have duty to make car reasonably safe in accident

e. Custom (TJ hooper) NOT dispositive – even if all products of its kind are unsafe it altogether can be negligent

5. Duty to Warn a. Warnings are not shields for

liability- if make defective product but warn still liable

b. If properly desgn and manufacture PLUS non obvious risk and NO warning = liability

c. Risk-utilityi. If forseeable risk of harm

could be reduced by instructions/ warnings = liability

d. No duty to warn against unknowable risks (asbestos)

e. If greater harm = greater need to warn even if small amnt ppl

f. Must warn against foreseeable misuse- warning less costly

g. Post sale duty to warn if learn of defects recall

6. Defensesa. Contributory negligence NOT

defenseb. Assumption of risk- voluntarily take

riskc. 3rd restatement

i. comparative negligence assumption of risk-failure to discover risk, high risk use-ignore safety precaution reduction not elimination of recovery

d. misuse of producti. reduce recovery, may not be

defective or/and may not be proximate cause

ii. may sometimes be superseding cause

iii. if FORESEEABLE misuse NOT SUPERSEDING

iv. if NOT forseeableSUPERSEDING

c. Manufacturing defectsi. Welge v. Planters (peanut jar shattering)

ii. Manufacturers fault or retailers?XV. Workers Compensation

a. Employer is liable even without fault of employeeb. No recovery for pain and sufferingc. Exclusive Remedy Clause: No choice must use WC if

arises out (related to work) of or in course of employment (while working time)

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TORTS OUTLINE – HERIOT i. Usually travelling to and from work not covered.

ii. Workers own fault not ground for denial of coverage-UNLESS

1. Intoxicatioin2. Illegality3. Disregard of safety rules

iii. If relationship with coworkers outside work and there is accident – NOT covered but if practical joke while at work IS covered.

d. Exclusive remedy DOES NOT apply to INTENTIONAL wrongs of employer- P must show that employer intentionally injured him

i. Safety regulations –some crts classify intentional tort if disregard safety regulations even if did not intentionally harm

ii. Substantial certainty of injury NOT enough for SOME courts.

iii. P can sue 3rd parties involved in injury if not employer

XVI. Intentional Torts a. Assault: apprehension of imminent (not future) harmful or

offensive contact (think they will be harmed)i. . DeS. V. W De. SD swings hatchet at P misses=

assault ii. intent intend apprehension OR contact (attempted

battery)b. Pranks can count as assault don’t intend to hit but P think

you arec. Transferred intent D throws at X, P nearby and in fear =

assault d. Words usually NOT enough for assault but taken into acct

i. Tuberville v. Savage- if it were not this time I would not take this language from you

e. Bluff P MUST be in imminent apprehension for assault f. Apprehension DOES NOT mean FEAR – scrawny guy

attempts to hit big guy is STILL assaultg. If sleeping no assault- can be battery without assaulth. Abandoned attempt point gun and change mind- still

assault XVII. False Imprisonment

a. Intentional confinement – P must show that D knew with substantial certainty that confinement would result

b. Transferred intent - entrapping X when trying to keep D from leaving store

c. Confinement- within certain limits- no enough to obstruct or block where they want to go- must of definite phusical boundaries. Bird v. Jones

d. Storeowners can detain suspectied shopleifters as long as it is brief and privileged.

e. Threat to property- taking customers bag if thought they are shoplifting- must be imminent- future harm (stay here until you are cleared) not enough

f. P must be aware of confinementg. D has duty to release e.g promise to let someone free on boat

but does not allow row boat = confinement Whittaker v. Sanford.

XVIII. Intentional Infliction of Mental Distress (IIED) a. Intentional or reckless infliction by extreme and outrageous

conduct b. 3 mental states

i. desire to cause emotional distressii. knows with substantial certainty P will suffer

iii. Recklessy disregards high probability of emotional distress

1. Knows of risks or facts that make risk obvious and burden to reduce risk are slight

c. Generally no transferred intent d. For P to recover – D’s conduct must be extreme and

outrageous i. Wilkinson v. Downton-D tells P husband is

hospitalized as joke- P suffers nervous shocke. Must be SEVERE mental distress to recover

i. Must show sought medical aid XIX. Defamation

a. Basic actioni. Statement (fact not opinioin “he is” vs. “I believe he

is”ii. Publication of statement – write it down not enough

need others to read it

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TORTS OUTLINE – HERIOT iii. Must be defamatory- harms individual’s reputation –

deter people associating to dealing with himiv. Concerns P (not anyone else)v. Falsity- Strict liability for state of mind

b.c. Two kinds defamation

i. Libel: written (newspapers, mags) vs. broadcase (internet, radio)

1. Libel per se- know just from statement that it is defamatory and need no other info

2. Libel for quad- cant know defamatory by looking at statement just know facts (married man with blonde woman in hotel, wife brunette)

ii. Slander: oral1. Slander per se: more like libel (4 kinds)

a. Person has diseaseb. Criminal conduct sexual misconductc. Slander of trade or profession (u are

incompetent lawyer)2. Ordinary slander

a. Must show special damage of pecuniary nature (financial)

iii. Qualified privilege1. Public figures- newspaper or publishers can

print statements even if they have doubts about their truth- P must show that D printed with Malice- ill intention

XX. Invasion of Pivacya. Intrusion to seclusion (peeping tom)

i. Intentionally intrudes upon seclusion and is HIGHLY OFFENSIVE to reasonable person (different std for celebrities)

b. Public disclosure of private factsi. Must be truly private- not public record

ii. Must not be of legit public concern (Lamon story – public not interested)

c. False Lighti. Information that is disclosed has to be false –

doesn’t have to be defamatory (affect reputation)

1. E.g painting someone as hero when they are not

ii. More like defamation d. Misappropriation of name or picture

i. Using hot model on bag of flour without permission ii. Vanna White pic without permission/contract

XXI. Misrepresentationa. Intentional misrepresentation

i. Elements1. Misrepresentation2. Culpability

a. Knew/believed not telling truthb. No confidence in accuracy of

statementc. No grounds for statement d. Negligence NOT enough

3. Inted to have P rely on misrep4. Reliance by P5. Damage to P

ii. Failure to disclose not misrepresentation – exceptions

1. Ficuciary relationship (lawyer/client)2. Partial statements that are misleading3. Newly acquired knowledge that makes

previous misleading4. Basic info

iii. Liable to foreseeable 3rd parties (e.g sell car wholeseller with misrep and he sells to P, liable to P)

iv. Hyberbole not actionable (this is best car on market)v. Cannot make affirmative misreprestntaion (if want

to drill oil and buy land cant say I want land for soybeans BUT can say soybeans among other things)

b. Negligent Misrepresentaion i. Usually no action UNLESS personal injury or direct

property damage or even intangible eco harm ii. Liable to limited group

1. Intends to reach with info2. Knows recipient intends to reach

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TORTS OUTLINE – HERIOT 3. UltramaresD prepares audit books for X

who will show to banks to borrow money. P lends money to X which goes BK- court holds no duty to P. restatement if know that X is likely to give to group of people (not specifically who) will be liable to limited number of people

iii. Limited to pecuniary harm no emotional harmc. Strict Liability

i. Generally no stict liability unless1. Sale, rental exhcnge

d. Contributory negligence NOT DEFENSE to battery or fraud e. Corva V. USAA – ask

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