TORTS
1. FOR EACH TORT IN THE QUESTION:
A. STATE THE RULE AND ALL THE ELEMENTS AND ANALYZE THE FACTS.
B. STATE DAMAGES ONLY IF IT IS AN ELEMENT, OR MENTIONED.
C. STATE ANY APPARENT DEFENSES.
2. AFTER DISCUSSING EACH AND EVERY TORT, CONSIDER ANY RELATED GENERAL TORT ISSUES. (Multiple defendants, respondent superior and etc.)
NOTE: Do not say “crime” or “guilty”. (Say “tort” or “liable”).
Look for multiple possible torts in the same scenario.
SPECIFIC TORTS
INTENTIONAL TORTS
General Considerations
· Transferred Intent
· All are liable for intentional torts (age does not matter).
TORTS AGAINST PERSONS
1. Battery - Intentional, harmful or offensive, contact with the person.
· Contact can be direct or indirect. (Something attached to plaintiff, like a purse.)
· Inadvertent contact is not a battery. (but still analyze issue)
2. Assault - Intentional, reasonable apprehension, of an imminent harmful contact.
· Plaintiff must be aware of the assault.
· Threat must be real, and in the immediate future.
· Size does not matter.
3. False Imprisonment - Intentional, restraint of a person, in a bound area.
· Restraint must be in all directions.
· Physical threat is restraint.
· There must be no reasonable means of escape.
· Exception: Shoplifting: If suspicion is reasonable..
4. Outrage - Intentional, extreme or outrageous conduct, causing the plaintiff to suffer emotional distress.
· Words alone are not enough
· Conduct must be outside bounds of reasonable behavior.
· “Plaintiff will have to show emotional distress.”
· Use this if assault and battery are not satisfied.
TORTS AGAINST PROPERTY
5. Trespass to Land - Intentional, physical invasion of land, which is the plaintiff’s land.
· Also consider nuisance tort.
· Applies to a person intending to step on land, and also an intent to put something (like a thrown object) upon the land. [This may couple with an assault issue.]
6. Trespass to Chattels - Intentional, minor interference, with plaintiff’s personal property.
· Applies when personal property is taken without subsequent disposition.
7. Conversion - Intentional, major interference, with plaintiff’s personal property.
· Applies when personal property is taken and subsequently sold, destroyed, etc. (Watch for use of item in battery.)
Only discuss Defenses if they are apparent from the fact pattern.
DEFENSES TO INTENTIONAL TORTS
1. Consent - Valid consent, with the capacity to do so.
· Validity is determined by not exceeding the scope of the consent.
· Implied Consent is possible (Emergency situations, sports events, etc.)
2. Self Defense - Reasonable force being used to prevent an apparent tort to ones self.
· Reasonability depends on the force being used against the defender.
· Applicable when tort is occurring or about to occur.
3. Defense of Others - Reasonable force being used to prevent an apparent tort to another.
4. Defense of Property - Reasonable force (except deadly force) being used to prevent an apparent tort to ones property.
5. Recapture of Property - Reasonable force (except deadly force) being used to recapture property, while in “hot pursuit”.
6. Necessity - Privilege to harm one’s property, for the public good, in an apparent emergency.
· Shooting a rabid dog.
7. Authority of the Law - Reasonable force to arrest someone committing a felony.
· Note: shopkeepers privilege.
PRIVACY TORTS
Defamation A False and Defamatory Statement, Published to a Third Party, Causing Damage to Plaintiff, at the Fault of Def.
· False statement: Of Fact, not opinion.
· Must be about the plaintiff.
· If not false, then look to another issue.
· Must be Communicated (Written/Oral).
· Defamatory statements are often damages per se.
· TO Find Fault:
· Public Person: Then malice must be shown. (The Knowing or reckless disregard for the truth.)
· Private: Must be negligently made.
· Republication: Same analysis. They too are liable.
Defenses to Defamation
1) Truth
· If its true, look to a different tort.
(such as Invasion of Privacy).
2) Consent - (In public forum.)
3) Privileges - Confidential Communications
· Spousal Communications
· Court room testimony
· Legislative hearings.
INVASION OF PRIVACY TORTS
1. Publication in a False Light - Publication to a third party in a false light.
· Public Person - Malice must also be proven.
· Use this if defamation analysis does seem to good.
2. Public Disclosure of Private Facts - Publication of private information of facts an ordinary person would not want to be made public.
· Public Person - Malice must also be proven.
· These are usually true statements, but tortuous.
3. Intrusion into Plaintiff’s Affairs - An intrusion into the plaintiff’s private affairs which an average person would deem unreasonable. (offensive to reasonable person) THIS IS THE CATCH ALL INVASION OF PRIVACY TORT.
4. Appropriation of Plaintiff’s Picture/Name - Unauthorized appropriation or use, of plaintiff’s name or picture, for the commercial gain of the defendant.
Usually an advertising setting.
MISCELLANEOUS TORTS
1. Misrepresentation - Intentional false representation of material fact, inducing plaintiff’s justifiable reliance, and plaintiff is ignorant of the falsehood, injured (damaged).
· The fact must be material.
· Silence is not enough (unless there is a statutory duty to speak; ie. Real estate sale of home),
· If in a commercial setting, consider negligent misrepresentation = consumer protection issue.
2. Nuisance - Substantial and unreasonable interference with one’s rightful use and enjoyment of their property.
· If a public nuisance, the interference is with a common public right.
· Balancing Test: Balances rights of party to use their land and the interference it causes to others.
· Defense: Activity is consistent with the zoning code of the area. [Nuis. can be intentional or negligent]
3. Interference with Business Relations - Intentional, interference with a business relationship, which causes a termination of business expectancy, causing damages.
· THERE MUST BE THREE PARTIES INVOLVED.
· Look for this coupled with a defamation tort.
· Defenses: Privileged Interference- Where interferer is party’s attorney, accountant, spouse, business advisor. These people can interfere.
4. Wrongful Institution of Legal Proceedings
NEGLIGENCE
RULE: To prove negligence, plaintiff must show defendant had a duty of care to plaintiff, and the breach of that duty proximately caused the plaintiff’s damages.
DUTY OF CARE
Generally: -- Each person has a duty to act reasonably to everyone.
· Mental ability is not relevant; the person still must act reasonable.
· Physical disability (such as blindness) requires acting as reasonably as a person similarly situated.
· Emergency Situation – What would the reasonable person do?
· NO affirmative duty to act unless family member, and if the act puts the plaintiff at risk, then no duty. Have a duty if you caused the harm.
Modifying the Duty - Special Relationships
1. Good Samaritan - A person that renders service in an emergency has a duty to refrain from reckless and extreme gross negligence. But no duty to stop in the first place unless it’s a relative!
2. Children - Are held to a standard of a reasonable person their same age.
· Children < 6 years old: Cannot be held negligent.
· Children engaged in Adult Activity: Are held to an adult (reasonable person) standard of care. (Like Hunting or driving tractor)
3. Professionals - Health Care Professionals (HCP) are held to the standard of reasonable skill, care, and knowledge of a reasonably prudent practitioner in the state of Washington. (Regardless of experience.)
· Holding Ones Self out as a Specialist - Imputes a higher standard of care.
· Hospitals - Have a duty to supervise all medical practitioners.
· Implied Consent - HCP’s must disclose to patients all material facts and risks relating to treatment. If unconscious, or emergency and reasonable person in situation would have consented.
4. Common Carriers / Innkeepers - Duty of Mere/Slight Negligence to their passengers and clients. Higher Duty.
5. Landowners / Occupiers of Land
a. Duty to Adjacent Property Owners - No added duty for natural conditions occurring upon ones’ property that affects another’s property. (Exception: If such condition is unreasonably dangerous, the owner has a duty to warn of the danger if may affect others.) Artificial conditions are subject to negligence or nuisance.
b. Duties to Persons on Owner’s Property
1) Duty to Adult Trespasser - No Duty Owed.
2) Duty to Child Trespasser - Attractive Nuisance. If the condition would attract a child and the child would not appreciate the danger, then there is a duty to take precautions to protect children. Must make attractive nuisance as safe as possible.
3) Duty to Licensees - Reasonable Care and to warn of known dangers. (Licensee - One who enters land with mere permission (express or implied) of the owners and for their own benefit.) Social Guests are there for their benefit.
4) Duty to Invitees - Reasonable Care & to warn of known dangers & dangers should have known to make reasonable inspection for dangers. (Invitee - One who enters land in response to an express or implied invitation of the owner, and for the benefit of the landowner.)
· EXCEPTIONS for Licensees and Invitees (where duty stops).
· When person exceeds the scope of their invitation.
· Claim arises from an obvious danger that recently occurred.
6. Bailment Duties (Bailor = Owner of property; bailee = holder).
A. If for Bailee Benefit: Bailor has a duty to warn of known defects/dangers; Bailee has a duty of great diligence.
B. If for Bailor Benefit: Bailor has a duty of to warn of known and should have been known dangers; Bailee has a duty of slight diligence.
C. If for Joint Benefit: Both parties must use reasonable care. If have disclaimer of warranty, can limit liability but it cannot be in violation of public policy, but cannot exceed bailee’s own negligence.
7. Statutory Standards - Generally, the violation of any statutory standard will create a prima facie case of negligence (and the burden is shifted to the defendant to prove they were not negligent.)
· Possible Defense: If conformity of the statute would have caused greater harm (if applicable from the facts).
· Note: Commercial Server of Alcohol – Negligent if a person is obviously drunk or a minor, the serving business will be liable for any acts of that person thereafter. Not just a restaurant scenario, think 7-11.
· Driving While Under Influence - Prima Facie Evidence of Negligence Per Se – so burden of proof shifts. Exception: compliance with statutory standard would have created a greater harm.
8. Affirmative Duty to Act - Generally there is no affirmative duty to act.
· Exceptions:
a. Family Member - One does have an affirmative duty to act on behalf of a family member.
b. Party Action Creating Peril or Danger - If a party’s action is what actually caused a peril or danger, there is an affirmative duty to act.
c. Gratuitous Act - If a Gratuitous act is offered, a duty to follow through may thereafter apply.
9. Duty to Control Others - Generally, a person does not have a duty to control others, UNLESS they have actual ability and authority to control the third party, then they must use reasonable efforts to do so. (Ex. Child/Parent).
BREACH
1. Generally - Look to the fact pattern to determine if the duty was breached.
2. Violation of a Statute - Prima facie evidence of negligence.
3. Res Ipsa Loquitor - An accident which would not likely happen in the absence of negligence, said negligence is attributable to the defendant, and the plaintiff is free from fault.
· This is not a presumption of negligence, rather when proven it establishes a prima facie case of negligence, thereby shifting the burden to the defendant to disprove.
CAUSATION
Two Part Analysis
1. Cause in Fact - The injury would not have occurred but for the defendants act.
2. Proximate Cause - A defendant is generally liable for all foreseeable harmful results.
· A Foreseeable Intervening Cause does not break the chain of causation; and a prior tort is a proximate cause.
· Rescuers and Medical Practitioners negligence is always a foreseeable intervening cause; therefore, a prior tort will be a proximate cause.
· An Unforeseeable Intervening Cause, break the chain of causation; a prior tortfeasor is liable for damages up to the intervening cause, but not beyond.
· Note: If no intervening cause is presented by the facts, Simply state, “But for the defendant’s action the damage would not have occurred. Defendant action is a proximate cause.”
· Two Defendants’ Simultaneous Actions - If both tended to cause the same damage, both will be held negligent and the burden shifts to them to determine the actual tortfeasor.
DAMAGES
1. What Are the Damages - Only address damages if it is apparent from the fact pattern.
Otherwise, simply state “Defendant is / is not liable for damages”.
2. Duty to Mitigate - If there is a time lapse between an injury and action, which could have been taken by the plaintiff, then plaintiff may have a duty to mitigate. Only discuss if in fact pattern.
3. Collateral Source Rule - Damages are usually not reduced or mitigated by reason of plaintiff receiving benefits from other sources. (Ex. Insurance, sick pay, etc.)
DEFENSES TO NEGLIGENCE
1. Comparative Fault - Pure comparative fault applies. Plaintiff damages will be reduced by his % of liability.
2. Assumption of the Risk - A voluntary undertaking of an activity knowing there is risk.
· This may be implied or express.
3. Intoxication - Defendant must show plaintiff was intoxicated and also more than 50% at fault.
4. Commission of A Felony - Defendant must show plaintiff was in the commission of a felony at the time of the injury and the felony was a proximate cause of the injury.
STRICT LIABILITY
RULE: A person is strictly liable because he is engaged in a dangerous activity. (Based on the nature of the activity.)
LIABILITY FOR ANIMALS
1. Trespassing Animals - Owners are strictly liable for damages caused.
2. Wild Animals - Owners are strictly liable for damages caused.
3. Domestic Animals - Owners are generally not strictly liable unless owner knows the animal has a propensity for danger.
LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES
Rule: Persons engaged in Activities Involving Serious Risk of Harm, and Risk is Present Regardless of Precautions taken, will be held strictly liable for damages.
DEFENSES (see above)
1. Comparative Fault
2. Intoxication
3. Commission of a Felony
STATUTORY TORTS
PRODUCTS LIABILITY
Generally:
· Product: Anything made or manufactured is a product. (Blood is excepted).
· Manufacturer: One who designs, produces and/or fabricates product. (not minor assembly).
· Product Seller: Everyone in the commercial chain is a Product Seller . (Wholesaler/Distributor/Retailer).
· Exception: Does not apply to used goods.
Manufacturer Liability
· When Strictly Liable: A manufacturer is strictly liable for dangerous products that result from: Construction Defects (deviation from standards); or Breach of Warranty (express or implied).
· Express warranties - look to the facts for specific warranties given.
· Implied Warranties - Merchantability and Fitness for a Particular Purpose.
· When Negligence Standard Applies: A manufacturer is held to a negligence standard for Design Defects; or Inadequate Warnings at the time of manufacture.
· Market Share Liability: If there are multiple mfgs., damage is caused, and actual mfg. is not determinable, liability is apportioned by market share. (Drug cases.)
Product Seller Liability
· When Strictly Liable: A product seller strictly liable for dangerous products ONLY IF:
1) Product is sold under seller’s name;
2) Seller is a controlled subsidiary of manufacturer;
3) Seller provides specifications for product
4) No solvent manufacturer under WA JX.
· When Negligence Standard Applies: A product seller will be held to a negligence standard in all cases except those specified above where strict liability applies.
Defenses
1. Evidence of Industry Custom and Regulatory Standards -Compliance with Government Contract Specifications is an Absolute Defense.
2. Useful Safe Life has Expired -If the facts do not specify a useful life, the Presumption is 12 years for manufactured products.
3. Statute of Limitations - 3 years from the time plaintiff discovered or reasonably should have discovered problem.
CONSUMER PROTECTION (Applicable to Contracts (fraud) outline)
The Consumer Protection Act prohibits unfair deceptive acts or practices occurring in trade or business that affects the public interest and injures the plaintiff.
1. Unfair or Deceptive Act/Practice- Includes Per Se Unfair Acts, and an act which has the capacity to deceive the general public (no intent necessary).
2. Occurring in Trade or Practice - Any type of Commerce.
3. Which Affects the Public Interest - Acts Committed in Course of Defendants Business, that are Part of a Pattern, and there is a Potential for Repetition
4. Injury to Plaintiff
Defenses
Statute of Limitation = 4 years.
(Tolled by Action brought by State Attorney)
GENERAL CONSIDERATIONS
VICARIOUS LIABILITY (Get material from Agency outline - tort liability)
When someone else will be held responsible for the acts of the actor.
Respondeat Superior
· When Master is Vicariously Liable - Employer is vicariously liable for tortuous acts of an employee when committed in the Scope of Employment.
1. Frolic or Detour - A defense for the employer.
2. Independent Contractor - Who has control of the manner/method/means.
Partnership Liability (Get material from Partnership outline - tort liability)
All partners are liable for the negligent acts of other partners, except for intentional torts.
Automobile Owner Liability
Generally, an automobile owner is not liable for another’s use of his car, unless covered in Family Car Doctrine.
· Family Car Doctrine - Owner is liable if he furnishes a vehicle for the benefit of family members, which is driven with acquiescence of the owner, within an area of permissible use.
· Watch for facts that seem to indicate FCD, but not satisfying elements.
Parent for Child
· Negligence of Child: A parent is generally not liable for the negligent acts of their children.
· IF parent has knowledge of a propensity for negligent behavior on the part of the child, they may be liable for negligent supervision.
· Intentional Tort By Child: Parents ARE liable for intentional torts inflicted by their children.
MULTIPLE DEFENDANTS
Rule: All joint tortfeasors are jointly and severally liable for the plaintiff’s injuries.
· But look for intervening causes that may limit damages by respective tortfeasor.
SURVIVAL ACTIONS
When Plaintiff Dies Before Bringing an Action: The action survives death and the personal representative may bring the action on behalf of the estate.
COMMUNITY PROPERTY
Tort Liability to Third Party - A tort committed during marriage is presumed to be an activity for the benefit of the community and is a community property liability.
Enforcement of Liability Upon Termination of Marriage- Enforcement of a CP tort liability occurring during the marriage is enforceable against either spouses former CP.
Character of Damages in Personal Injury Action
· General Damages, including pain and Suffering, are separate property of the injured spouse.
· Special Damages, including lost wages and medical bills, remain community property.
Interspousal Torts - Wages and Medical Bills will remain community property losses, but pain and suffering will remain separate property.
STATUTE OF LIMITATIONS
2 YEARS - Personal Intentional Torts / Nuisance
3 YEARS - Property Torts / Negligence / Fraud
Medical Malpractice
· 3 years from Date of Act, or
· 1 year from Discovery, whichever is later, but not to exceed 8 years total.
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