Generalized Torts Outline

Most Torts questions are party-oriented problems. Therefore, the best way to approach a Torts problem is to examine the parties in the lawsuit and quickly determine the nature of the injury suffered by the plaintiff and the action (or inaction) of the defendant which caused the injury to the plaintiff. You will then be able to focus on the appropriate Tort(s) in issue.

1. INTENTIONAL TORTS: Each intentional tort requires a VOLITIONAL ACT done with the REQUISITE INTENT which is the CAUSE of the RESULTING HARM suffered by the plaintiff. a. Potential torts when the plaintiff suffers injury to his/her BODY: i. ASSAULT: Volitional act done with the requisite intent which causes the plaintiff to suffer reasonable apprehension of an immediate battery. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO PLACE THE PLAINTIFF IN APPREHENSION OF AN IMMEDIATE BATTERY? 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Did the plaintiff suffer REASONABLE APPREHENSION OF AN IMMEDIATE BATTERY? ii. BATTERY: Volitional act done with the requisite intent which causes the plaintiff to suffer a harmful or offensive contact. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO TOUCH the plaintiff? 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Did the plaintiff suffer a HARMFUL OR OFFENSIVE TOUCHING? iii. FALSE IMPRISONMENT: Volitional act done with the requisite intent which causes the plaintiff to be confined to a bounded area. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO CONFINE OR RESTRAIN the plaintiff within a bounded area? 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Was the plaintiff CONFINED? a. Was the plaintiff AWARE OF THE CONFINEMENT? If not, no recovery UNLESS the plaintiff was actually harmed by the confinement. b. Was there a REASONABLE MEANS OF ESCAPING THE CONFINEMENT? b. Potential torts when the plaintiff suffers injury to his/her EMOTIONS: i. Was the emotional distress ASSOCIATED WITH A SEPARATE TORTIOUS INJURY to the plaintiff’s body? If so, then recovery awarded under the separate tort. Otherwise: ii. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: Volitional act done with the requisite intent which amounts to extreme and outrageous conduct and which causes the plaintiff to suffer severe emotional distress. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO CAUSE SEVERE EMOTIONAL DISTRESS or RECKLESSLY DISREGARD THAT SEVERE EMOTIONAL DISTRESS MIGHT OCCUR? 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Did the plaintiff suffer SEVERE EMOTIONAL DISTRESS? c. Potential torts when the plaintiff suffers injury to his/her PROPERTY: i. Injury to REAL PROPERTY: 1. TRESPASS TO LAND: Volitional act done with the requisite intent which causes a physical invasion of plaintiff’s land. a. Did the defendant engage in a VOLITIONAL ACT? b. Did the defendant INTEND TO CAUSE A PHYSICAL INVASION OF THE PLAINTIFF’S LAND? (Note: Intent to trespass not required.) c. Did the actions of the defendant CAUSE the harm to the plaintiff? d. Did the plaintiff suffer a PHYSICAL INVASION of his/her land? 2. NUISANCE a. PRIVATE NUISANCE: Volitional act done with the requisite intent which causes a substantial and unreasonable interference with the plaintiff’s use and enjoyment of his/her land. i. Did the defendant engage in a VOLITIONAL ACT? ii. Did the defendant INTEND TO CAUSE A SUBSTANTIAL AND UNREASONABLE INTERFERENCE with the plaintiff’s use and enjoyment of his/her land? (Note: Defendant can also be liable in Negligence or Strict Liability.) iii. Did the actions of the defendant CAUSE the harm to the plaintiff? iv. Did the plaintiff suffer a SUBSTANTIAL AND UNREASONABLE INTERFERENCE WITH THE USE AND ENJOYMENT OF HIS/HER LAND? b. PUBLIC NUISANCE: Volitional act done with the requisite intent which unreasonably interferes with the health, safety, or property rights of the community at large. i. Did the defendant engage in a VOLITIONAL ACT? ii. Did the defendant INTEND TO UNREASONABLY INTERFERE with the health, safety, or property rights of the public? iii. Generally, only a REPRESENTATIVE OF THE PUBLIC can sue to abate a public nuisance. However, did the plaintiff suffer DAMAGE DIFFERENT IN KIND FROM THOSE INFLICTED ON THE PUBLIC? If so, plaintiff can sue. d. Injury to PERSONAL PROPERTY: i. CONVERSION: Volitional act done with the requisite intent which causes the destruction of or serious and substantial interference with plaintiff’s chattel. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO DO THE ACT which caused the conversion? (Note: Intent to convert not required.) 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Did the plaintiff suffer a DESTRUCTION OF OR SERIOUS AND SUBSTANTIAL INTERFERENCE WITH his/her chattel? 5. What is the available remedy? ii. TRESPASS TO CHATTELS: Volitional act done with the requisite intent which causes an interference with plaintiff’s chattel. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO DO THE ACT which caused the interference? (Note: Intent to interfere not required.) 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Did the plaintiff suffer an INTERFERENCE WITH his/her chattel? 5. What is the available remedy? 2. PRIVILEGES AND DEFENSES to Intentional Torts a. CONSENT i. Did the plaintiff either EXPRESSLY or IMPLIEDLY CONSENT to the defendant’s action? 1. Did the plaintiff LACK THE CAPACITY TO CONSENT? 2. Was the consent induced by FRAUD, DURESS OR MISTAKE? ii. Did the defendant’s actions EXCEED THE SCOPE OF THE CONSENT? b. DEFENSES i. SELF-DEFENSE 1. Did the defendant REASONABLY BELIEVE that he/she was under IMMINENT AND UNPRIVILEGED ATTACK? 2. Did the defendant use REASONABLE FORCE in response? ii. DEFENSE OF OTHERS 1. Did the defendant REASONABLY BELIEVE that another person was under IMMINENT AND UNPRIVILEGED ATTACK? 2. Did the defendant use REASONABLE FORCE in response? iii. DEFENSE OF PROPERTY 1. HARM TO PROPERTY: Did the defendant use REASONABLE NON-DEADLY FORCE to prevent harm to his/her property? 2. RECOVER REAL PROPERTY: May the defendant use force to recover wrongfully dispossessed land? 3. RECOVER PERSONAL PROPERTY a. Was the defendant TORTIOUSLY DISPOSSESSED of personal property? b. Must the defendant FIRST MAKE A DEMAND for return of the property? c. Did the defendant use REASONABLE NON¬DEADLY FORCE to recover the property? c. AUTHORITY i. Can the defendant claim the PRIVILEGE TO ARREST the plaintiff? ii. Can the defendant claim the SHOPKEEPER’S PRIVILEGE to detain the plaintiff? iii. Can the defendant claim the right to use REASONABLE FORCE TO MAINTAIN DISCIPLINE? d. NECESSITY i. PRIVATE NECESSITY: Can the defendant INJURE THE PROPERTY OF ANOTHER to avoid SUBSTANTIALLY GREATER HARM TO HIMSELF/HERSELF OR HIS/HER PROPERTY? ii. PUBLIC NECESSITY: Can the defendant INJURE THE PROPERTY OF ANOTHER to avoid SUBSTANTIALLY GREATER HARM TO THE PUBLIC? 3. NEGLIGENCE a. Did the defendant BREACH A DUTY owed to the plaintiff? i. Was there a DUTY owed? 1. Are there any applicable SPECIAL DUTY RULES or SPECIAL FACTORS? a. Did the defendant VIOLATE A CRIMINAL STATUTE? i. Was the statute designed to protect this CLASS OF PLAINTIFF from this TYPE OF INJURY? ii. Was the defendant’s violation of statute EXCUSED? iii. What is the EFFECT of the violation of statute? b. Did the defendant possess INCREASED KNOWLEDGE OR SKILLS greater than the average person? c. Was the defendant engaged in a type of activity that imposes a HIGHER DUTY OF CARE? d. Was the defendant and OWNER OR OCCUPIER OF LAND? If so: i. Was the defendant engaged in an ACTIVITY on the land? If so, defendant owes a DUTY OF DUE CARE. If not: ii. What was the STATUS OF THE PLAINTIFF? 1. If the plaintiff was a TRESPASSER, no duty is owed UNLESS: a. The plaintiff was either a KNOWN OR FREQUENT TRESPASSER. If so, what duty is owed? b. The plaintiff was a CHILD WHO IS TOO YOUNG TO KNOW AND APPRECIATE THE RISK INVOLVED. If so, what duty is owed? 2. If the plaintiff was a LICENSEE, what duty is owed? 3. If the plaintiff was an INVITEE, what duty is owed? 4. If the plaintiff was a person OFF OF THE LAND, what duty is owed? iii. Was the defendant a LANDLORD? If so: 1. What duty, if any, is owed to THE TENANT? 2. What duty, if any, is owed to THIRD PERSONS ON THE LAND? 3. What duty, if any, is owed to THIRD PERSONS OFF THE LAND? iv. Was the defendant a SELLER OF LAND? If so, what duty is owed? e. Does the jurisdiction have a GUEST STATUTE? f. Did the plaintiff suffer ONLY MENTAL DISTRESS? i. Did the plaintiff experience a PHYSICAL MANIFESTATION of the mental distress? ii. Is the plaintiff experiencing the mental distress as a result of WITNESSING ANOTHER being injured by the defendant? 2. If no special duty rules or special factors, was the GENERAL RULE OF DUTY owed? a. Does the jurisdiction follow the “CARDOZO VIEW” as to whom the duty is owed? b. Does the jurisdiction follow the “ANDREWS VIEW” as to whom the duty is owed? 3. Did the injury to the plaintiff result from an OMISSION TO ACT by the defendant? If so: a. Did the defendant CAUSE THE PERIL to the plaintiff? b. Did the defendant UNDERTAKE OR PROMISE TO AID PLAINTIFF? c. Did a SPECIAL RELATIONSHIP exist between the plaintiff and the defendant? ii. Was the duty BREACHED? 1. Did the defendant fail to act as a REASONABLE AND PRUDENT PERSON? a. Does allowance have to be made because the defendant was acting under an EMERGENCY? b. Does allowance have to be made because the defendant was A CHILD? 2. If it cannot be proven that defendant breached a duty, does the doctrine of RES IPSA LOQUITUR create an INFERENCE OF NEGLIGENCE? b. Was the defendant the ACTUAL AND PROXIMATE CAUSE of the plaintiff’s injury? i. Was the defendant the ACTUAL CAUSE? 1. Will the BUT FOR TEST work? If not: 2. Was the defendant a SUBSTANTIAL FACTOR in bringing about the plaintiff’s injury? If not: 3. Will the SUMMERS v. TICE TEST work? If not: 4. Will the MARKET SHARE TEST work? ii. Was the defendant the PROXIMATE CAUSE? 1. Were there any INTERVENING ACTS? a. IF NO, then defendant is the DIRECT CAUSE of the plaintiff’s injury. Was the injury suffered by the plaintiff FORESEEABLE? i. IF YES, the defendant is the proximate cause. ii. IF NO, was it the EXTENT or TYPE of injury that was unforeseeable? 1. If the EXTENT was unforeseeable, does the THIN SKULL PLAINTIFF doctrine apply? 2. If the TYPE was unforeseeable, does either the POLEMIS rule or the WAGON MOUND rule apply? b. IF YES, then the defendant is the INDIRECT CAUSE of the plaintiff’s injury. Was the intervening act DEPENDENT or INDEPENDENT? i. IF DEPENDENT, was the act ABNORMAL? ii. IF INDEPENDENT, was the act FORESEEABLE? c. Did the plaintiff suffer DAMAGES? d. Are there applicable DEFENSES? i. Did the plaintiff FAIL TO ACT REASONABLY IN HIS/HER OWN PROTECTION? 1. If the jurisdiction follows the doctrine of CONTRIBUTORY NEGLIGENCE: a. Was the plaintiff’s negligent conduct the PROXIMATE CAUSE of his/her own injuries? b. Could the contributory negligence of another be IMPUTED TO THE PLAINTIFF? c. Does the doctrine of LAST CLEAR CHANCE apply? 2. If the jurisdiction follows the doctrine of COMPARATIVE NEGLIGENCE: a. Does the jurisdiction follow PURE comparative negligence? i. Does the jurisdiction follow PARTIAL comparative negligence? ii. Does the doctrine of ASSUMPTION OF THE RISK apply? 4. STRICT LIABILITY a. Did the defendant POSSESS AN ANIMAL which injured the plaintiff? i. Was it a WILD ANIMAL? ii. If the animal was a DOMESTIC ANIMAL, did the animal possess KNOWN DANGEROUS PROPENSITIES? b. Did the defendant engage in an ABNORMALLY DANGEROUS ACTIVITY? i. Does the activity present a RISK OF SERIOUS INJURY? ii. Does the activity present a RISK THAT CANNOT BE ELIMINATED BY THE EXERCISE OF ORDINARY CARE? iii. Was it an activity that IS NOT USUALLY CONDUCTED IN THE AREA? c. Was the defendant the ACTUAL AND PROXIMATE CAUSE of the plaintiff’s injuries? d. Did the plaintiff suffer DAMAGES? e. Are there applicable DEFENSES? 5. PRODUCTS LIABILITY: Special body of law to be considered whenever the lawsuit involves injuries which arise from a DEFECTIVE PRODUCT. a. STRICT LIABILITY IN TORT i. Was the plaintiff the TYPE OF PERSON who can sue? ii. Was the defendant the TYPE OF PERSON who can be sued? iii. Was the PRODUCT DEFECTIVE? 1. Did the product contain a MANUFACTURING DEFECT? 2. Did the product contain a DESIGN DEFECT? 3. Did the defendant FAIL TO ADEQUATELY WARN of a danger presented by the product of which the defendant KNEW OR SHOULD HAVE KNOWN? iv. Was the defendant the ACTUAL AND PROXIMATE CAUSE of the plaintiff’s injuries? v. Did the plaintiff suffer DAMAGES? vi. Are there applicable DEFENSES? b. BREACH OF WARRANTY i. Did the defendant make an EXPRESS WARRANTY as to the NATURE OR QUALITY OF THE PRODUCT? ii. Was their an applicable IMPLIED WARRANTY OF FITNESS OR MERCHANTABILITY? 1. Was the plaintiff the TYPE OF PERSON who can sue? 2. Was the defendant the TYPE OF PERSON who can be sued? iii. Was the defendant the ACTUAL AND PROXIMATE CAUSE of the plaintiff’s injuries? iv. Did the plaintiff suffer DAMAGES? v. Are there applicable DEFENSES? c. NEGLIGENCE: What special modifications need to be made to the basic negligence cause of action? d. INTENTIONAL TORT: What special modifications need to be made to the basic intentional tort cause of action? 6. DEFAMATION: Defamatory message concerning the plaintiff, published by the defendant, which causes the plaintiff damage. a. Was there a DEFAMATORY STATEMENT OF FACT? b. Was the statement CONCERNING THE PLAINTIFF? i. Was the statement DEFAMATORY ON ITS FACE? If not, can EXTRINSIC EVIDENCE be used to show that the statement was UNDERSTOOD AS APPLYING TO THE PLAINTIFF? ii. Did the statement refer to a GROUP OF WHICH THE PLAINTIFF WAS A MEMBER? c. Was the statement PUBLISHED TO A THIRD PARTY? i. Did the defendant either INTENTIONALLY OR NEGLIGENTLY permit the statement to be COMMUNICATED TO A THIRD PARTY? ii. Is the defendant liable as a REPUBLISHER? d. Did the plaintiff suffer RECOVERABLE DAMAGES? i. Was the statement SLANDER OR LIBEL? ii. Must PECUNIARY DAMAGES BE PROVEN? 1. Was the statement SLANDER PER SE? 2. Was the statement either LIBEL PER SE or LIBEL PER QUOD? e. Do CONSTITUTIONAL PRINCIPLES apply to the cause of action? i. Was the plaintiff a PUBLIC FIGURE OR PRIVATE PERSON? ii. Was the subject matter a PUBLIC OR PRIVATE CONCERN? iii. What is the appropriate standard for each of the following lawsuits: 1. PUBLIC FIGURE V. MEDIA DEFENDANT? 2. PUBLIC FIGURE V. NON-MEDIA DEFENDANT? 3. PRIVATE FIGURE V. MEDIA DEFENDANT? 4. PRIVATE FIGURE V. NON-MEDIA DEFENDANT? f. Are there applicable COMMON LAW PRIVILEGES AND/OR DEFENSES? i. DEFENSES 1. Was the statement TRUE, and who bears the BURDEN OF PROOF on this point? 2. Did the plaintiff CONSENT TO THE PUBLICATION OF THE STATEMENT? a. Did the plaintiff either EXPRESSLY or IMPLIEDLY CONSENT? i. Did the plaintiff LACK THE CAPACITY TO CONSENT? ii. Was the consent induced by FRAUD, DURESS OR MISTAKE? b. Did the defendant’s actions EXCEED THE SCOPE OF THE CONSENT? ii. ABSOLUTE PRIVILEGES 1. Was the statement COMMUNICATED BY THE DEFENDANT TO HIS/HER SPOUSE? 2. Was the statement MADE DURING A LEGISLATIVE PROCEEDING? 3. Was the statement MADE DURING THE COURSE OF A JUDICIAL PROCEEDING? 4. Was the statement MADE BY A MEMBER OF THE EXECUTIVE BRANCH IN THE COURSE OF HIS/HER DUTIES? iii. CONDITIONAL PRIVILEGES 1. Was the statement made as part of a FAIR AND ACCURATE REPORT OF A PUBLIC PROCEEDING? 2. Did the statement concern a MATTER OF PUBLIC INTEREST and was it communicated to one EMPOWERED TO PROTECT THAT INTEREST? 3. Was the statement a FAIR COMMENT ON A MATTER OF PUBLIC INTEREST? 4. Was the defendant privileged to make the statement to protect his/her own interest? 5. Are there any factors which would cause the defendant to LOSE THE QUALIFIED PRIVILEGE? 7. INVASION OF PRIVACY a. Did the defendant make an UNREASONABLE INTRUSION INTO THE PLAINTIFF’S SECLUSION? b. Did the defendant make an UNAUTHORIZED USE OF THE PLAINTIFF’S IDENTITY for the defendant’s COMMERCIAL ADVANTAGE? c. Did the defendant make an UNREASONABLE PUBLIC DISCLOSURE OF PRIVATE FACTS about the plaintiff? d. Did the defendant PORTRAY THE PLAINTIFF IN A FALSE LIGHT? e. Do CONSTITUTIONAL PRINCIPLES apply to the cause of action? f. Are there applicable COMMON LAW PRIVILEGES AND/OR DEFENSES? 8. ECONOMIC TORTS a. DECEIT: A misrepresentation made by the defendant with the requisite intent and with scienter which causes the plaintiff to suffer damages. i. Was there a MATERIAL MISREPRESENTATION OF FACT? ii. Did the defendant INTEND THAT THE PLAINTIFF RELY on the misrepresentation? iii. Did the defendant act with SCIENTER? iv. Did the plaintiff JUSTIFIABLY RELY on the misrepresentation? v. Was the plaintiff’s reliance an ACTUAL AND PROXIMATE CAUSE of the damages suffered? vi. Did the plaintiff suffer DAMAGES? b. NEGLIGENT MISREPRESENTATION i. Was there a MATERIAL MISREPRESENTATION OF FACT? ii. Did the defendant FAIL TO EXERCISE DUE CARE in making the misrepresentation? iii. Did the plaintiff JUSTIFIABLY RELY on the misrepresentation? iv. Was the plaintiff’s reliance an ACTUAL AND PROXIMATE CAUSE of the damages suffered? v. Did the plaintiff suffer DAMAGES? c. INTERFERENCE WITH CONTRACT i. INDUCING BREACH OF CONTRACT: Volitional act done with the requisite intent which causes a third person to breach an existing contract with the plaintiff. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO INDUCE A THIRD PERSON TO BREACH THE CONTRACT? 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Was there a BREACH OF AN EXISTING CONTRACT which caused harm to the plaintiff? 5. Are there any applicable defenses? ii. INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE: Volitional act done with the requisite intent which causes a third person to refrain from entering into a contract with the plaintiff. 1. Did the defendant engage in a VOLITIONAL ACT? 2. Did the defendant INTEND TO INDUCE A THIRD PERSON TO REFRAIN FROM ENTERING INTO THE CONTRACT? 3. Did the actions of the defendant CAUSE the harm to the plaintiff? 4. Did the plaintiff SUFFER HARM? 5. Are there any applicable defenses? 9. GENERAL PRINCIPLES CONCERNING THE EXTENT ON LIABILITY a. LIABILITY-WIDENING factors i. PLAINTIFF’S DEVICES 1. Is there a RELATIONSHIP BETWEEN THE TORTFEASOR AND THE DEFENDANT which justifies the doctrine of VICARIOUS LIABILITY? 2. Was the defendant under a DUTY TO CONTROL the actions of the tortfeasor? ii. DEFENDANT’S DEVICES 1. Can the defendant seek CONTRIBUTION from another tortfeasor? 2. Can the defendant seek INDEMNITY from another tortfeasor? b. LIABILITY-NARROWING factors i. Is there an applicable IMMUNITY FROM LIABILITY? ii. Has either the VICTIM OR THE TORTFEASOR DIED? 1. If so, does the jurisdiction have a SURVIVAL STATUTE? 2. If so, does the jurisdiction have a WRONGFUL DEATH STATUTE? iii. If there are multiple tortfeasors: 1. Has one tortfeasor SATISFIED ALL OR PART OF THE PLAINTIFF’S INJURIES? 2. Has one tortfeasor been granted a RELEASE?