Torts Wypadki Spring 2012

Transcription

1 Trts Wypadki Spring 2012 Trts II Eric E. Jhnsn Assciate Prfessr f Law University f Nrth Dakta Schl f Law Cpyright by the authrs. Authred by the students f Trts II, and incrprating sme material riginally authred by Prf. Jhnsn. This dcument has nt been reviewed by Prf. Jhnsn fr legal r factual accuracy. Frm Preliminary Printing Nt Authrized fr Exam This is cpy f the Trts Wypadki Spring 2012 is a preliminary versin fr use in studying. Yu may nt bring this cpy with yu t the exam t use as a reference. When yu sit fr the exam, yu will be given a clean printed dcument, which will be the same as this dcument, except that this cver sheet will be different, and there may be markings n the interir pages t indicate that such pages are part f the fficial printing authrized fr use in the exam.

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3 Spring 2012 Trts Wypadki Table f Cntents: Intentinal Trts 5 Remedies 21 Dealing with Accidents Outside f Negligence 27 Special Issues Cncerning Rights f Actin 32 Special Issues Cncerning Parties t the Litigatin 33 Hiatuses - Canadian and Indian Law 44 Oblique Trts 46 Theretical and Plicy Perspectives 59 Indignancy Matrix 60 Defamatin Flwchart

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5 INTENTIONAL TORTS Intent Generally Vlitin & Cnsciusness f likely cnsequences: D desires the cnsequences f his acts OR is substantially certain his acts will cause the elements f the trt t ccur. Garratt v. Daily: Remanded t trial ct issue f whether 5 y/ Δ was substantially certain Π V wuld fall while attempting t sit n a chair Δ had mved. Bhrman v. Main Yankee Atmic Pwer C.: Hlding several students culd claim damages fr battery b/c the nuclear plant they were turing was allegedly substantially certain the students wuld be expsed t excessive dses f radiatin. Special Cnsideratins Transferred intent dctrine: If Δ intends any f the 5 intentinal trts, but her acts, instead r in additin, result in any f the ther 5, Δ is liable even thugh she didn t intend the thers. (nt nly des the intent t cmmit 1 trt satisfy intent req fr the ther, but the intent t cmmit a trt against ne V can transfer t any ther V) Applies t: battery, assault, false imprisnment, trespass t chattel/land. Nt necessary Δ knw r have reasn even t suspect that the ther is in the vicinity f the 3rd persn. Intent transfers when battery is intended n 1 persn & accmplished n anther [burglar/neighbr], when assault intended & battery accmplished [burglar/neighbr] & when false imprisnment intended & accmplished [burglar/guest]. Mistake dctrine: If D intends t d acts which wuld cnstitute a trt, it is n defense that D mistakes, even reasnably, the identity f the prperty r persn he acts upn r believes incrrectly there is a privilege. Insanity and Infancy are nt defenses NOTES FROM DLB: [a] Intentinal trts have t be dne n purpse (D desires r knws t a substantial certainty the utcme will ccur). Reasnable persn standard is evidentiary but nt dispsitive. [b] desire is subjective, but is smetimes measured bjectively (firing a laded gun directly at smene, fr instance). [c] substantial certainty is when D pretty much knws that their actins will satisfy the trt requirements, like intentinally blwing up a stagecach, even if yu didn t knw Bb was n it, yu intentinally injured Bb. Different frm reckless cnduct. [d] transferred intent applies t battery, assault, false imprisnment, trespass t chattel, and trespass t land. This means that if yu intend t cmmit ne f these trts but instead end up cmmitting anther, yu are liable fr the actual trt (even th it wasn t the riginal intent). This can als transfer between victims (intended t hurt A but hurt B instead). Restatements 5 5

6 accept transferred intent nly between assault and battery. Als transfer f victims fr false imprisnment. [e] mistake dctrine. If the trt is intentinal then mistaken identity is n defense as lng as D has nt wrngfully induced the mistake. Self-defense is still a valid prtectin. Effectively impses strict liability n D s wh make mistakes. [f] infancy and insanity are nt defenses, hwever intent is subjective as discussed abve, s an infant r mentally diminished persn may nt be able t have the requisite intent. Intent t prve serius harm is nt required, just an understanding f/desire t cause what will happen when the actin is taken. Battery 1. Harmful r Offensive Cntact; Reasnable persn standard Exceptin: when D knws P is unusually sensitive Withut privilege: Must nt be cnsented t; in everyday life, cnsent is implied (bumping int smene n bus) Egg shell P: D liable fr all harm that results if nly a minr battery was intended "A D takes his V as he finds him" V des nt have t be aware f cntact; i.e. uncnscius includes cntact f things set in mtin, including particulates: See Leichtman v. WLW Jacr -- blwing smke in smene's face is a battery 2. T π s persn; See Bhrmann v. Yankee Maine Pwer -- causing radiacive particles t cntact turing students is a battery. Π s bdy r anything which is attached t it & practically identified w/ it (purse, car) 3. Intent; and Once Δ has engaged in even a mere technical battery against Π, the risk f unfreseen harm arising frm battery is brne by Δ cnsequently: Δ can be liable fr greater damages than may be intended. Vsburg v. Putney: Where by playfully but w/ privilege slightly kicks a classmate w/ intending harm, he is respnsible fr the unexpected serius illness which resulted (uncnsented hrseplay resulted in V being impaled n a meat hk) 4. Causatin Direct (hitting π) r Indirect (setting an bject in mtin) cntact NOTES FROM DLB: [a] intentinal harmful r ffensive cntact with the victim s persn. Physical and psychlgical. 6 6

7 [b] intent required but nt intent t harm, just intent t cause the cntact. Once the intent is accmplished, D is respnsible fr harm even if nne was intended. [c] Harmful r ffensive cntact. As lng as sciety defines the cntact as harmful r ffensive, P is liable even if D isn t aware f the cntact (D kisses P while she is sleeping withut cnsent r privilege). This can g t a grey area when P is versensitive, the tuching is nt cnsidered ffensive scietally and D is unaware. If D is aware then it depends n the circumstances and precedent is ambiguus at best. [d] Causatin - D must d the actin vluntarily, but des nt need t actually cntact the victim (ie thrwing a rck). [e] as a plicy it s pretty easy t defend battery, but the dwnside is that the pprtunity t sue, while preventing further vilence, may nt really be the desired utcme. Assault An intentinal creatin f an immediate apprehensin f a harmful r ffensive tuching Elements 1. Act 1. Act 2. Intent 3. Causatin 4. Apprehensin 5. Immediacy Imminent Harmful r Offensive Cntact Wrds alne are nt enugh. Surce f Cntact It is nt necessary that D be the perceived surce f the threatened harmful r ffensive cntact. Ex: telling smene a stick is a snake Cnditinal Assault: Assault made cnditinal n Π nncmpliance w/ an unlawful demand still assault, even if Π cnfident n assault will actually ccur if Plaintiff cmplies w/ request 2. Intent Can be intent t effect an assault r intent t effect a battery D must desire r be substantially certain that her actin will cause the apprehensin f immediate harmful r ffensive cntact. Accidental creatin f apprehensin= nt assault but may be NIED 3. Causatin Apparent ability sufficient 4.Apprehensin V must perceive that harmful r ffensive cntact is abut t happen t him 7 7

8 Plaintiff must nt be asleep, attacked frm behind. Apprehensin f imminent cntact need nt strike fear in V Apprehensin simply acknwledges Π awareness that imminent harmful r ffensive cnduct will ccur unless Π takes effective evasive actin (expectatin f harm, rather than being in fear) Π superir strength r evasive techniques d nt immunize Δ frm liability, prvided Π apprehends imminent cntact wuld ccur in absence f evasive actin Apprehensin is mre f a sense f expectatin, rather than being in fear. Wrds alne are nt sufficient, but wrds can negate the effect f cnduct 5. Imminent Harmful r Offensive Tuching If t "frward lking": Insufficient t satisfy immediacy req. Case Law I de S et ux. v. W de S: Allwed H (W had n legal standing) fr recver frm Δ wh wielded an axe at Π s W. Even thugh W nt physically tuched, attack caused her harm (fear f imminent physical injury) this is a case frm the mental damage has lng been recgnized as an injury. Castr v. Lcal 1199: threatening an emp while slamming a table was frward lking & was therefre insufficiently immediate t cnstitute assault NOTES FROM DLB: [a] this is abut cmping purely psychlgical injury. Tends t be cnstrued very narrwly. [b] assault ccurs when D s acts intentinally cause the victim s reasnable apprehensin f immediate harmful r ffensive cntact. N requirement f reasnable. Different frm criminal definitin in that crim = attempted battery, where trt = apprehensin (n apprehensin with attempted battery = n assault). [1] Intent same as discussed befre. Transferred intent applies. Accidental creatin f the apprehensin wuld mre likely be NIED. [2] apprehensin means the victim must be aware f the attempted tuching (ie nt asleep r lking the ther way) and must believe D is capable f the act (ie an unladed gun that D claims is laded). [3] the harmful r ffensive cntact must be imminent - future threats r threats withut any actin t back it up dn t cunt. [4] reasnable apprehensin means generally that if I pint a pencil at yu and push the eraser and yu are scared yu will be sht, it prbably isn t assault (but the restatements might make it s). Hwever, if I knew yu had a deadly fear f pencils and decrated yur ffice with them, that culd cunt. [5] fear v. apprehensin - the imminent cntact desn t need t make the victim afraid, just means that the victim is aware that the tuching will ccur unless they take evasive actin (r smething else intervenes like bdyguards). IE being spit at wuld nt make me afraid but it IS ffensive and I WOULD want t get ut f the way. [6] cnditinal assault = where D makes a threat f an unlawful nature s that if the victim chses it they will avid harm (ie give me yur wallet r I ll kill yu while 8 8

9 brandishing a knife). That is still assault. If a delay is built in r anther cnditin (I d kill yu if there weren t a cp standing right here) there is n assault. [7] surce f cntact des nt need t be D directly, if they create the apprehensin thrugh ther means assault can still happen (ie rigging a trap t scare smene). [c] Justificatins: [1] Mral justificatins are that it is wrng t d this t smene. The apprehensin requirement can make it under-inclusive frm a standpint f hw the criminal law wrks. Over-inclusive mrally, I mean really, being aware f ptentially being tuched ffensively? [2] this allws the distress t be cmped and the imminent part gives a bright line future threats may fall under IIED. [3] can deter retaliatin - if yu knw yu can sue fr the assault yu are less likely t escalate the situatin t battery. Als keeps that t self-defense, which is an acceptable srt f thing in this sciety. False Imprisnment 1.Uncnsented act r missin with intent t*intent t cnfine established by: Frce r the immediate threat f frce against P, P's family, r P's prperty Implied threat sufficient Withlding prperty Omissins where there is a duty t act A takes B ut n bat & A prmises t return upn B's request. A refuses t return t land. A has a legal duty (cntractually) t act. 2. Cnfine r restrain π Physical barriers, physical frce, threats f frce, failure t release, invalid assertin f legal authrity (false arrest) Ecnmic r mral pressure and future threats nt enugh Use f threats f ecnmic retaliatin r terminatin f emplyment t cerce Π t remain dn t cnstitute FI Time irrelevant, hwever, amt f cmpensatin reflects length π must knw f the cnfinement Restatement mdifies; wuld find liability even when Π nt aware f cnfinement but is injured. Types f lawful cnfinement 3. T a bunded area Restraint f shplifters BUT must be: rsbl belief theft ccurred detentin in rsbl manner fr a rsbl perid f time Cntractual Obligatins (pilt must keep yu n a plane befre take-ff) Child discipline 9 9

10 Freedm f mvement limited in all directins, nt FI if P free t prceed in any directin, even if P prevented frm ging in directin P prefers N reasnable means f escape knwn t π Nt rsbl if requires Π t be heric, endure excessive embarrassment r discmfrt, r if Π unaware f means f escape Can be large Nte:Cntrast w/ Malicius Prsecutin & Abuse f Prcess FI cmpensates fr unlawful cnfinement; cnfinement that is priv nt unlawful When arrest is privileged & cnfrms t all legal reqs t justify, FI liability precluded Malicius prsecutin: arrest pursuant t lawful prcedures mtivated by bad faith Abuse f prcess: imprper use f certain cmpulsry prcesses (subpenas) despite cnfrming t legal reqs NOTES FROM DLB: [a] where D acts t unlawfully and intentinally cause cnfinement r restraint f the victim within a bunded area. Accidental cnfinement = negligence r strict liability. Victim must usually be aware f it. [b] the victim must be cnfined in an area bunded in all directins. Nt being able t g the directin yu want t (but being able t g in any ther directin) is NOT imprisnment. The bunded area can be as large as a city r it can be a mving vehicle. REASONABLE means f escape precludes liability. Unaware/heric measures, etc = nt reasnable. [c] victim must be cnfined r restrained, maybe by 1) physical barriers, 2) frce r immediate threat f frce 3) missin where D has a legal duty t act r 4) imprper assertin f legal authrity. [1] physical barriers: must surrund v in all directins s that n reasnable means f escape exists. [2] Frce: May be directed at v, v s family, cmpanins, r prperty. Future threats r threats against emplyment, etc dn t cunt. [3] Omissins: If yu dn t d smething yu said yu wuld d, like I ll unlck the dr whenever yu want then if the ther criteria are met this is t. P must establish that D had a duty t act. [4] Imprper assertin: aka false arrest. V must submit t it fr it t cunt. this is met if D is nt privileged under the circumstances t make the arrest. Different privileges fr plice v. private citizens. [d] Cntract w/ malicius prsecutin & abuse f prcess: privileged cnfinement is nt unlawful. If it is a lawful arrest liability here is precluded. Hwever the lawful arrest if mtivated by bad faith and meeting ther criteria may be malicius prsecutin. Imprper use f dcuments like subpenas may be abuse f prcess (ther requirements here t) [e] V must be cnscius f the cnfinement at the time it ccurs. Restatements wuld negate this requirement if harm ccurs. [f] N minimum time. BUT cmpensatin sill reflect the length f the detentin. [g] Transferred intent applies here [h] plicy issues include ptential issues with the awareness requirement and what kinds f restraints are unlawful

11 Outrage (Intentinal Inflictin f Emtinal Distress) 1. Act f extreme and utrageus cnduct; Transcends all bunds f decency in sciety (must be truly utrageus) Mere rudeness r callus ffensiveness insufficient Vulnerability f V & relatinship f Δ t V can be critical Cruelty tward yung child r very ill patient mre likely perceived as utrageus than cmparable cnducted directed twards healthy adult Presence f superir-subrdinate relatinship taken int acct 2. Intent r recklessness: disregard fr high prbability that emtinal distress will ccur; P must prve that the D intended t cause severe emtinal distress r acted with reckless disregard as t whether the victim wuld suffer severe distress. Recklessness will suffice -- this is the nly intentinal trt withut intent abslutely required Severe Mental Distress mild distress will nt suffice. 3. Causatin; and Bystander: when Δ harms 3rd party and π suffered emtinal distress, may recver either by prima facie case fr IIED r: (i) P present when injury ccurred, (ii) P clse relative f injured persn and (iii) Δ knew (i) and (ii) 4. Severe emtinal distress Sme Jurisdictins require Plaintiff t seek nn-psyciatric medical attentin This is a way t cut ff spurius claims Mre utrageus cnduct, the easier t prve damages Nte:Sexual Harassment & Racial Epithets: Cts hesitate extending IIED t these Islated prpsitin r attempts at seductin traditinally nt actinable, nr liability extended slely b/c f racial slurs Ct mre likely t impse liability where a pattern f harassment is cnstant & nging Mst situatins where liability impsed fr racial r sexual harassment: cmbinatin f speech & cnduct. Jnes v. Clintn: Δ briefly expsed himself while prpsitining a state emp. Cnduct was sufficiently brief & w/ cercin s as nt t be extreme & utrageus Exceptin fr Innkeepers, Cmmn Carriers, and Other Public Utilities Innkeepers, cmmn carriers, and ther public utilites are liable fr intentinal grss insults which cause patrns t suffer mental distress

12 The requirement that the D ACT in an extreme and utrageus manner t impse liabilty fr intentinal inflictin f emtinal distress is waived. The P must be a patrn f the D. NOTES FROM DLB: [a] this is newer and less rigidly defined which can be a gd thing until the 1st amendment cmes int play [b] This started as a way t recver fr mental distress that accmpanied a severe physical injury. Usually a case f utrageus behavir. Cmmn carriers with insulting behavir was an exceptin t the physical injury requirement. Gradually increased t n injury required and then nt even just t victim. [c] IIED = d s extreme and utrageus cnduct intentinally r recklessly causes v severe mental distress. [1] extreme and utrageus cnduct = behavir which is beynd all bunds f decency and t be regarded as atrcius, and utterly intlerable in civilized cmmunity. N bjective standard but mere rudeness/callusness is nt enugh. definitely situatinal; knwledge f a weakness (like an unreasning fear f flaminges) and expliting that usually cunts t. [a] IIED hasn t been widely extended t sexual harassment and racial epithets because they d nt usually meet the extreme and utrageus standard. Same fr islated attempts at seductin and racial slurs, unless there is an established pattern f behavir. [b] Public individuals have limited IIED rights when the cnduct is a pardy, nt claimed/purprted t be the truth, and wuld nt be taken as truthful by a reasnable reader. Called the New Yrk Times standard. N indicatin that the curts are ging t limit the recvery rights fr private individuals. [2] Intent r recklessness: Recklessness cunts fr this where it wn t fr mst ther intentinal trts. Endrsed by the restatement. Means a deliberate disregard f a high degree f prbability that severe mental distress will result, even if that is nt the intentin. [3] Originally physical manifestatins (like a heart attack r miscarriage) were required t prve severe mental distress (t prevent fraudulent claims) but nt s much any mre. Evlutin away recgnizes that the utrageusness f D s behavir can interpret the distress, and tummy issues are easily faked..mst states d require sme srt f prf f the distress als [d] IIED desn t usually have transferred intent. This recgnizes that there wasn t really a transfer, by the behavir, D intended t allw sme harm t cme t the 3P. Usually als requires P t be 1) clse relative, 2) present at the scene f the incident when it happened and 3) D knws the 3P is present. Restatement is less restrictive, allws nn-relatives t recver if present and suffer mental damage. Nt widely accepted. These are nt generally insured s allwing bystander recvery wuldn t have a large insurance impact. There are arguments bth ways. [e] Cmmn carriers are liable fr grss intentinal insults which cause severe mental distress. Extreme and utrageus requirement waived. P must be a patrn f D (but n purchase requirement, just have t be an invitee). Intended t reflect the higher duty f care these D s have, but it is questinable in the mdern light s curts usually will enfrce the existing classificatins but nt extend them

13 [f] plicy issues - t vague (uncertainty as t when it applies), where mre specific trts culd be created t take its place. It is, hwever limited by the high bar f extreme and utrageus behavir and addresses mental anguish where ther trts might nt. Trespass t Chattels definitin: the intentinal interference with the right f pssessin f persnal prperty. D act must intentinally damage the chattel, deprive the pssessr f its use fr a substantial perid f time, r ttally dispssess the chattel frm V. 1. Act that interferes with π s right f pssessin in a chattel; Intermeddling: directly damaging chattel (denting car) Dispssessin: deprive π f right f pssessin Mre than trivial r mmentary interference 2. Intent; Des nt require that the D act in bad faith r intend t interfere with the rights f thers. Sufficient that the actr intends t damage r pssess a chattel which in fact is prperly pssessed by anther. Mistake and gd faith are nt defenses (i.e. that yu tk smene elses umbrella b/c yu thught it was yur wn- n defense) Transferred Intent applies. Intent fr battery, assult, trespass t land, r false imprisnment can be substituted t satisfy the requisite intent fr trespass t chattel. 3. Causatin; and 4. Damages Actual required Usually measured as the cst t repair the chattel Plaintiff has the chattel returned t her alng with the mney fr repairs = make her whle Transferred Intent Applicatin If A intends t hit B w/ rcks & misses, but hits B s r C s car, A liable fr damage under trespass t chattel. Even if car ttaled (a very big rck ala radrunner-cyte?), NO CONVERSION b/c car's destructin nt intentinal & transferred intent n/a t cnversin. NOTES FROM DLB: 13 13

14 [a] these can verlap (a cnversin is usually als a trespass) but nt always. Bth invlve wrngful pssessin f the chattel; cnversin exists nly when the damage r ther interference is sufficiently serius t justify a frced sale t D. [b] TRESPASS TO CHATTEL - the intentinal interference with the right f pssessin f persnal prperty. D must intentinally damage, deprive the pssessr f its use fr a substantial perid, r ttally dispssess the chattel frm the victim. [1] bad faith nt required. As lng as the damage, etc, is intentinal, mistake is n excuse. [2] Actual damage, substantial deprivatin, r dispssessin required. A trivial interference is nt a trt (unlike trespass t land). Mmentary dispssessin - unless at a critical mment - desn t cunt. Stealing, even if nly fr a bit, cunts as D is challenging P s right t wnership. [3] transferred intent applies. Cnversin Definitin: an intentinal exercise f dminin and cntrl ver a chattel which s seriusly interferes with the right f anther t cntrl it that the actr may justly be requires t pay the ther the full value f the chattel. 1. Act that interferes with π s right f pssessin in a chattel; Only tangible persnal prperty and intangibles that have been reduced t physical frm (deed, prmissry nte) 2. Interference is s serius that warrants requiring Δ t pay chattels full value; Theft, wrngful transfer, wrngful detentin, substantially changing, severely damaging r misusing The lnger the withhlding and mre extensive the use, likely t be cnversin (less serius interference is Trespass t Chattels) 3. Intent; and Purchasing stlen prp, even if B was acting in gd faith & nt aware S didn t have title= cnversin by bth S & inncent B. 4. Causatin Special Issues: Mre v. Regents f U f Cali: P didn't retain sufficient interest in excised cells t state a cause f actin fr cnversin. Refused t extend trt primarily b/c f plicy issues (strng interest in scially useful scientific research). Bld shield laws prhibit the treatment f bld and bld derivatives as prducts (instead cnsidered services) fr the purpses f strict liability & implied warranty claims. Sentimental value in Chattels Smetimes curts will award the cst f repair fr sentimental chattel even if it utweights the FMV. NOTES FROM DLB: 14 14

15 [c] CONVERSION: an intentinal exercise f dminin and cntrl ver a chattel which s seriusly interferes with the right f anther t cntrl it that the actr may justly be required t pay the ther the full value f the chattel. Generally limited t tangible prperty unless the intangible prperty has distinct scientific, literary, r artistic value. 6 factrs: [1] the extent and duratin n the exercise f dminin r cntrl [2] the intent t assert a right in fact cnsistent with O s right f cntrl [3] the actr s gd faith [4] the extent and duratin n the interference with the ther s right f cntrl [5] the harm dne t the chattel [6] the incnvenience and expense caused Trespass t Land Definitin: an actinable invasin f an interest in exclusive pssessin f land. 1. Physical invasin f π s real prperty; Persn r bject (thrwing a ball is sufficient) Intangibles (dr, vibratins) are nuisance r strict liability if ultrahazardus Real prperty is land, air abve, land belw 2. Intent; and Intent t d the act that results in trespass is sufficient d nt have t intend t trespass Mistake f fact is nt a defense Mistaken belief f permissin t enter is nt a defense 3. Causatin Causal interventin f natural cnditins (wind, rain), in initiating r exacerbating the trespass will nt abslve Δ liability. Def. is liable fr damages incindental t the trespass Kpka v. Bell Telephne -- trespasser liable fr persnal injuries t land wner fr digging hle n his land withut any shwing f negligence This is almst like strict liability Nminal damages available where n physical injury t prperty r persn ccurred can be useful fr asserting a rightful claim t the prperty -- judgment says yu are the landwner NOTES FROM DLB: [a] an actinable invasin f an interest in exclusive pssessin f land. Prtects the surface, subsurface, and airspace. Pssessin means anyne with a current OR reversinary interest (like a landlrd). Trespass = invasin f prperty interests/exclusive right f pssessin; nuisance = interference with use and enjyment f that right. [b] INTENT = the desire t cause the cnsequences f the act, r that the believe the cnsequences are substantially certain t result frm it. Mistake is n excuse, and D desn t 15 15

16 have t intend the trespass specifically as lng as they intended the act that caused the trespass. DEFENSES Self Defense Scpe: Reasnable frce can be used. Must sincerely believe the frce is necessary fr prtectin. Belief need nt be crrect. Frce must be in respnse t immeditae threat pre-emptive strike nt justified retaliatin nt justified. Can nly use deadly frce if deadly frce is threated. Ex- can't sht smene wh thrws a punch at yu. Mst Curts: Reject duty t retreat prir t use f nn-deadly frce. NOTES FROM DLM: [a] reasnable frce can be used where ne reasnably believes that such frce is necessary t prtect neself frm immediate harm. Sincere but unreasnable actins are nt privileged. [b] the threat must be immediate. A pre-emptive strike is nt justified under cmmn law. There is sme argument abut allwing a preemptive strike fr harm threatened during the immediate ccasin ie abusive relatinships and prisn cells, where the intended victim cannt get away and the actr has unlimited access. Retaliatin is als nt allwed. [c] The victim s respnse must be reasnable. Yu cannt kill smene fr kicking yu in the shins. The victim must believe that the frce is necessary t avid an attack, even if the belief is wrng, and that self defense is necessary. Lethal frce is nly reasnable if the victim believes that death wuld result frm the attack. Threatening, hwever, may be reasnable even when the actin wuld nt. [d] Obligatin t retreat frm less-than-deadly frce = NONE. Frm deadly frce = nne if yu have the right t be present r t prceed (majrity). Minrity = retreat, except frm yur dwelling (unless the assailant als lives there), r a retreat cannt be safely r reasnably accmplished. Defense f Others Reasnable frce can be used t prtect a 3rd persn frm imminent unlawful physical harm. 3rd party can nly use frce that victim culd have used t defend himself. Majrity Rule: Reasnable frce can be used t prtect victim whenever intervenr reasnably believes the victim is entitled t self defense. Minrity--Limited Privilege Rule: Use f frce in defense f a 3rd persn exists nly when the persn being defended was privileged t use frce

17 Intervenr must stand in the shes f the persn being prtected. Act at yur wn peril NOTES FROM DLM: [a] a persn can use reasnable frce t prtect a 3P frm immediate unlawful physical harm. N limit n wh can d the prtecting. [b] Sme curts limit the privilege f defense t when the persn in need f defense wuld have been able t use that privilege. [c] sme curts tss ut the abve and say there is a privilege t use reasnable frce t prtect 3P whenever the actr reasnably believes that a 3P is entitled t use self-defense. [d] Plicy cnsideratins - a gd Samaritan acting in gd faith shuldn t be punished but there is the prblem f stranger interventin targeting the wrng persn. Defense and Recvery f Prperty Defense f Prperty Reasnable frce can be used t prtect land and chattels Reasnable mistake des nt excuse frce directed at inncent parties. Deadly frce is never reasnable. Even slight frce is unreasnable if it is excessive. Mechanical devices are never justifiable. Ex) Kat v. Briney - Spring laded gun. Defense f Hme Deadly frce nt justified unless intruder threatens ccupant's safety. Ex) Felny Recvery f Prperty Can use reasnable frce t recver prperty when in "ht pursuit" f the wrngder. NOTES FROM DLM: [a] there is a privilege t use reasnable frce t prevent a trt against real r persnal prperty. N excuse fr reasnable mistakes. [b] lethal frce is never reasnable. Reasnable is in cntext t the ffense - if a verbal warning will suffice, then hitting with a shvel is unreasnable. [c] frce used mistakenly against a privileged party is nt excused, unless the victim causes the actr t believe that the intrusin is unprivileged. [d] Defense f habitatin - deadly frce/serius bdily harm nt justified unless the intruder threatens the ccupants safety either by cmmitting r intending t cmmit a dangerus felny n the prperty. Als yu can t eject a nn-threatening trespasser when ding s wuld cause harm

18 [e] defensive mechanical devices are strngly discuraged by the curts. It is nt privileged unless such frce wuld be justified if the wner f the device were inflicting the harm. Deterrents t enter land, like barbed-wire fences, are generally held t nt be intended t inflict serius harm, and they are visible (nt traps) s they are OK. [f] recvery f persnal prperty - reasnable frce when in ht pursuit. Act at yur wn peril - mistake dctrine des nt apply. Merchant s privilege allws retentin fr reasnable perids t investigate pssible theft, this des usually include a reasnable mistake clause. Necessity Allws the Defendant t interfere with prperty interests f an inncent party in rder t avid greater injury. Public Necessity - Injuring private prperty interest t prtect the cmmunity. Cmplete defense N cmpensatry damages are wed Blwing up Plaintiff's stre and all the cntents is nt cmpensable when ding s t create a fire break and prevent further damage t the city. Private Necessity - Persn injures private prperty t prtect a private interest valued greater than the injured prperty. Incmplete defense Defendant must cmpensate Plaintiff Ex) D ties his bat up t P's dck t get ut f a strm and save his life. Any damage dne t P's dck must be cmpensated by D. Punitive damages unavailable NOTES FROM DLM: [a] designed t prtect thse wh act in a greater-gd srt f situatin [b] Private necessity - yu can interfere with the prperty right f anther t avid a greater persnal lss r harm, but have t pay damages. [c] public necessity - yu can interfere r take smene s prperty t avid mre substantial public harm. N liability. Sme curts are ging against this th. [d] Intentinal injury and killing - there is n clear authrity but this bk argues that if ne life is t be sacrificed t save multitudes then it prbably shuld be deemed OK. Cnsent Types f Cnsent 1. Express Can be written / ral / gestures 2. Implied in fact under the circumstances cnduct cnveys cnsent Ex) jumping int a bxing ring - cnsent t getting hit is implied. Measured by bjective manifestatins f cnsent by Victim 18 18

19 Negated if Trtfeasr subjectively knws that thse manifestatins are nt giving cnsent 1. Implied by law cnsent t medical treatment by medical prfessinals if uncnscius. Implied by law can be negated - Ex) bracelet that expresses bjective t treatement fr religius reasns. Medical prcedure withut express r implied cnsent = battery Cnsent Invalid if Induced by: Fraud Physical Threat Ecnmic Pressure Lacks Capacity t Cnsent if: Child Insane Mentally retarded Under the influence f drugs ScpeTypically a questin f fact fr the jury Did a 13 year ld cnsent t being tackled vilently by his ftball cach r t being tackled by players f like age and skill? NOTES FROM DLM: [a] if a victim gives permissin the trt becmes privileged. Can be express r implied. [b] EXPRESS AND IMPLIED CONSENT. This is a valid defense when bjectively manifested - the victim s secret but unexpressed lack f cnsent cannt be relied upn. Hwever if D knws f the unexpressed desire that invalidates the defense. Express cnsent can be wrds r pictrial gestures. Implied cnsent is when, under the circumstances, the cnduct f the individual reasnably implies cnsent. Als implied by cmmunity custm. [c] CONSENT BY LAW - legislatures dictating when cnsent fr smething is given - usually uncnscius persn cnsenting t medical treatment. Can be negated by wearing a medical alert bracelet t that effect. [d] INVALIDATING MANIFESTATIONS OF CONSENT [1] INCAPACITY - an individual can be held t lack capacity t cnsent, ie a child cannt cnsent t surgery. Insanity r retardatin = lack f capacity. Drug ingestin (incl. alchl) can incapacitate and negate. BUT if the incapacity is nt knwn r cannt reasnably be knwn, that des nt negate the cnsent in mst cases. [2] ACTION BEYOND SCOPE OF CONSENT - If yu agree t being punched in the stmach and they beat yu all ver, that is beynd the scpe f yur cnsent s they are liable. In the medical field, prcedures beynd cnsent except where immediately necessary t save the patient s life are usually liable as battery, but nt always. Shuld be careful and play it safe! [3] FRAUD negates cnsent (ie lying abut the nature f the trt) but fraud abut say the name brand f an item des nt because it is cllateral. Medical cnsent is usually 19 19

20 treated as negligence, and then the standard is if a reasnable physician wuld have infrmed. [4] DURESS - cnsent under physical threat is invalid. Ecnmic pressure des nt negate. Situatinal duress can als negate - A is trapped and B demands smething befre letting A ut. [5] ILLEGALITY - a persn cannt cnsent t a criminal act (majrity rule). Minrity says they can cnsent as far as the trt liability unless the criminal law is specifically designed t prtect members f the victim s class

21 REMEDIES REMEDIES - DAMAGES definitin: the mney awarded t the persn injured by the trt f anther. 3 kinds: Nminal Damages a symblic award given t the P when liability fr a trt is established but n actual harm ccurred r is prven with sufficient certainty. Cmpensatry Damages damages awarded t a persn as cmpensatin, indemnity, r restitutin fr harm sustained by him. Punitive Damages awarded entirely t the plaintiff when a trt is cmmitted with malice. Prperty Damages based upn cnceptin f value permanent deprivatin f the prperty results in the market value being used Typically measured at the time f the trt if real prperty is damaged but nt destryed, curts generally cmpensate the victim fr the diminished market value f the prperty where malice is established, punitive damages can als be awarded Persnal Injury Can be cmpensated fr: Medical expenses Lst wages and/r impaired earning capacity Medical Expenses Other incidental ecnmic cnsequences caused by the injury Pain and suffering Typically need sme ther type f physical injury cmpensatin befre pain and suffering damages can be awarded Hw t calcultae? Melvin Belli -- anesthesilgist cst $400 per hur t prevent pain in surgery; Plaintiff will have pain fr X number f hurs. Yu d the math. Many states have statutry limits n the amunt f P&S damages fr sme trts (typically med. malpractice) An injured Π can be awarded all reasnable medical expenses caused by the trtfeasr Π can als recver anticipated medical expenses caused by the Δ 21 21

22 Can pse difficult issues cncerning V's future need fr medical care and anticipated cst f such care rdinarily the Π must intrduce expert medical testimny t supprt these claims Lst Wages f Diminished Earning Capacity V can recver fr past and future lst wages r diminished earning capacity Π can be entitled t be cmpensated fr wages r lst business earnings during the perid the injury has impacted, and in the future is anticipated t impact, negatively n thse earnings (alternatively, Π may seek recvery fr past and future impaired earning capacity) Under this apprach, Δ cannt reduce his liability by arguing the Π wuld have, fr example, chsen t have lived n anther family member s incme rather than pursuing his wn career Impaired earning capacity requires prf f the victim s specific ability, skills, and aptitude fr a career path prir t injury this makes recver fr diminished earning capacity f children trt victims particularly difficult Incidental Ecnmic Cnsequences Als recverable; travel expenses t seek medical treatment as well as expenses incurred fr husekeeping services because f the victim s incapacity Reductin t Present Value Generally damages fr medical and ther expenses are awarded in a lump sum Ex.) an award fr future lst earnings is intended t cver the next 20 years, the actual award must be reduced t take int accunt that $ is being transferred t V in advance Reflects that V is being cmpensated fr lsses he has nt yet incurred Pain and Suffering Only that which is prximately caused by the trtfeasr If patient is uncnscius they usually cannt recver fr this because they are nt aware f their lss N bvius mnetary equivalent, mnetary recvery can never fully cmpensate fr such intangible injuries The Cllateral Surce RuleThe cverage f damages suffered by Plaintiff frm surces ther than his wn funds (insurance prceeds, rich uncle, etc.) d nt lessen defendant's bligatin fr thse damages. Subrgatin clauses in mst insurance cntracts mean that Plaintiff des nt get t duble recver, nce frm defendant and nce frm the insurer. Punitive Damages Malice is required fr an award n punitive damages usually defined as ill will, hatred, r reckless disregard fr the rights f plaintiff. Justified as a frm f retributin and as deterrence

23 The amunts f punitive damages awards have been subjected t cnstitinal due prcess analysis. Factrs t determing if there is a lack f due prcess: The degree f reprehensibility f the trtius cnduct The rati f the cmpensatry damages t punitive damages N set rati, but SCOTUS has intimated that 4:1 is upper limit f apprpriate (but this is nt hard and fast) The civil penalties (fines) fr such cnduct. Other Remedies NOTES FROM DLM: OVERVIEW Damages = the mney awarded t the persn injured by the trt f anther. Types are nminal, cmpensatry and punitive. Nminal = symblic (ften $1) t shw liability was established but n harm ccurred/is prven sufficiently. Basically serves as judicial recgnitin f the wrng (can be helpful fr bundaries in trespass cases). Trts that require damages t be actinable never have nminal damages. Cmpensatry = cmpensatin, indemnity r restitutin fr harm. Can be awarded fr pecuniary and nn-pecuniary lsses. Prperty = diminished market value, replacement value, r rental value. Pecuniary = medical expenses, lst wages, diminished earning capacity, and ther ecnmic expenses. Nn-pecuniary = pain, suffering, mental distress. Punitive = punish and deter particularly egregius cnduct. Discretinary and fr an act with malice. Usually g t P, but sme states get a cut. There has been sme statutry mdificatin (ie malpractice damages). PROPERTY DAMAGES Interference with prperty is cmpensable and based n a thery f value. Permanent deprivatin/ destructin = market the time f the trt, ccasinally real value. If damaged but nt destryed = lss f market value, smetimes cst f reasnable repairs instead. Sentimental value f the prperty can factr int which is chsen. Prevented frm using = lss f use r rental value (r rental value f substitute prperty even if it exceeds rental value f wn prperty). Discmfrt and annyances are als cmpensable. If D is aware f the sentimental value smetimes mental distress damages are awarded t. N sentimental value = n distress damages, but if there is malice perhaps punitive. PERSONAL INJUURY V can be cmped fr medical expenses, lst wages/earning capacity, ther ecnmic lsses, and pain/suffering [a] medical expenses - all reasnable expenses caused by the trtfeasr, such as payments fr dctrs, hspitals, nursing care, PT, abd testing. Als anticipated medical care which can be difficult t prve - usually expert witnesses are needed/used. [b] Lst wages/earning capacity - pretty much what it says. Actual lsses, lst raises. OR past and future impaired earning capacity (instead f trying t prve lst incme). Measures v s lst 23 23

24 ptential t earn incme, nt dependant upn prf that that incme WOULD have been earned. Usually industry standard is used t value v s time (even if V wuld value it higher). Requires prf f a specific ability/skills/aptitude fr the career path prir t the injury. Educatin can prve very persuasive. Fr infants/yuths, it is a guess at best. The estimates fr all include the life expectancy f V prir t the injury. [c] things like travel expenses, husekeeping services, etc. [d] Reductin t present value - this takes int accunt that P is getting the mney in advance, s interest rates can reduce this (curt is assuming P will invest wisely). On the flip side, inflatin can reduce the lump sum. BUT they are nt subject t incme tax. [e] Pain and suffering - includes cmp fr lss f enjyment f activities as well as metal distress ver an injury and any disfigurement. Als fr reductin in life expectancy r cncern ver illnesses they may nw be subject t. If V is uncnscius he cannt recver - V is nt aware f the deprivatin, therefre cannt suffer frm it. Jury values this n a per diem basis then multiply by a # f days BUT yu can t have a glden rule judgment (hw much wuld yu require t change places with P?). The issue here is that there is n bvius mnetary equivalent. As such there is nt usually reductin f present value. Nt cmpensating this wuld ignre a very real aspect f the trt, and prvides deterrence. Hwever $ can never truly cmp fr these things. Cmplicated by the fact that this is what usually cvers the attrney s fees. MITIGATION/DOCTRINE OF AVOIDABLE CONSEQUENCES Injured v s have a respnsibility t act t reasnably t limit r mitigate the lsses incurred. Things like ging t the dctr t get stitches, etc. If V desn t d that, D is nt liable fr incremental lsses that culd have been prevented. This is different frm cmparative/cntributry negligence, where P cntributes t the trt in the first place smehw. NON-DAMAGES REMEDIES Restitutinary Remedies LEGAL Replevin yu can get this befre trial allws yu t get pssessin f a chattel that has been seized by the Δ (yu just need a hearing and yu can get the chattel back befre trial) Trver -- like replevin, but instead yu recver the value f the chattel, nt the thing itself Ejectment fr restring pssessin f land (similar t replevin) Quasi-Cntract award f mney; based n the value f an unjustly btained benefit (ex. yu harvest yur neighbr s grain befre the strm cmes he culd get cmpensatin fr prviding that benefit; if yu are injured and wrked n in the ER cncept f quasi-cntract allws them t be paid fr wrking n yu) EQUITABLE Cnstructive Trust trust is a cncept f prperty wnership where the prperty is wned in trust fr smene r smething else s benefit; cnstructive means smething fake (cnstruing smething t be a trust); 24 24

25 Requirements: Δ must acquire title t sme prperty, have t shw that the Δ keeping the prperty wuld result in unjust enrichment, (in sme curts) must be n adequate remedy at law Advantages (ver quasi-cntract) if yu can trace the prperty yu can get the benefit f enhanced value f that prperty; yu can becme a secured creditr f the prperty (wns mney and has security interest in a particular thing s that they are sure t get the mney back ex.) bank can get back yur huse if yu d nt pay mrtgage; car lans, etc. Equitable Lien Lean placed n Δs prperty t secure payment t the Π Different frm a cnstructive trust in that yu nly have a security interest up t the amunt f yur claim (nt enhanced value); (ex. selling stck and using prceeds t build an additin n yur huse) Must be misapprpriatin f the Πs prperty Traceable Unjust enrichment N equitable remedy at law (in sme jurisdictins) Injunctins an rder frm the curt that has smebdy d r refrain frm ding smething Injunctins are equitable (nt legal) Classic example smene is ging t demlish a building; if yu represent a histrical sciety wh wants it t be preserved yu can get a curt rdered injunctin t get them t NOT tear dwn the building Three types: TRO -- Obtained ex parte, last nly until the prelim. hearing. Preliminary injunctin -- issued at a hearing t last fr the duratin f the legal actin (culd be fre years) This is a huge deal as it may determine the whle utcme (i.e., business shuts dwn b/c prelim. inj. prevents peratin f the business) Permanent injunctin -- part f the judgment and rder f the curt fllwing the full prceedings Equitable Defenses Unclean hands if yur yurself are being unfair Laches like a statute f limitatins, but n definite time perid -- Plaintiff waited t lng and nw it is unfair t allw the claim Transfer f legal title t a bnafide purchaser did nt knw it was purchased thrugh stlen means (n ntice) Equitable Estppel -- Parties changed psitin in reliance n the parties' acts and Plaintiff had pprtunity fr claim befre the change in psitin ENFORCING JUDGMENTS damages are awarded but hw are they enfrced? If smene des nt have enugh mney t pay a debt, there are varius ways t enfrce it 25 25

26 Seize assets Judgment creditrs Federal marshal seize smething t scare them int giving yu the mney (Example frm Prf: Π had a judgement fr $2000 against an airline; fed marshal went t LAX, seized a 757 plane and they cut her a check fast) 26 26

27 DEALING WITH ACCIDENTS OUTSIDE OF NEGLIGENCE DEALING WITH ACCIDENTS (OUTSIDE OF EX-POST NEGLIGENCE) Strict Liability fr Animals Generally Under special circumstances, liability may be impsed withut a shwing f negligence r ther frm f culpability Elements Abslute respnsibility fr safety Trespassing animals 2d Restatment strict liability fr the pssessr f trespassing livestck unless (1) the harm is nt a freseeable ne; (2) the trespass by animals being "driven" alng the highway is cnfined t abutting land; r (3) state cmmn law r statute requires the cmplaining land wner t have erected a fence. Owner f land abutting highway wuld have t prve negligence; if animals strayed further nt sme ther wners land, then that wner can recver under strict liability. Wild animals n prperty, t licensees and invitees Dmestic animals with knwn, uncmmn, dangerus prpensities Cats, stallins, mules, steers, hrses, heifers, bees and parrts are cmmnly held as dmestic animals. Ultrahazardus / abnrmally dangerus activities Factrs Examples Defective prducts Degree f danger Risk f serius harm Inability t render safe Uncmmnness f activity in area Blasting Oil drilling Fumigatin Crp dusting Defendant must be a "cmmercial supplier" f the prduct at issue Manufacturers, whlesalers, and retailers are cmmercial suppliers Nt casual sellers Actual causatin Generally the same as fr negligence Prximate causatin Generally the same as fr negligence Damages Generally the same as fr negligence 27 27

28 Safety Regulatin Enabling Statute gives agencies the pwer t regulate things within their area. (FAA, FDA etc.) Agencies make laws in tw ways: Rule making prcess = mini statutes that have the pwer f law. Adjudicatin = Ability t make decisins when disputes arise. Cngressinal branch grants pwer t regulatry agencies thrugh an enabling statute. They have the pwer t take this pwer away at anytime. Cngress als has the pwer t take mney away frm a regulatry agency. Judicial branch reviews rulemaking, reviews adjudicatins and can verturn agency actin when it is uncnstitutinal. Generally the curts defer t the agency unless they d smething really stupid. Wrkers Cmpensatin OverviewA statutry regime that replaces trt law. Emplyees give up right t sue, but are autmatically cmpensated fr almst any injuries arising ut f their emplyment regardless whether their emplyer is negligent. Wh is an emplyee? Right-T-Cntrl Cmmn Law Test If the emplyer has the ability t cntrl yur wrk, then yu re an emplyee This test is mre narrw than the ecnmic realities test The IRS uses the Right-T-Cntrl Test t detrmine whether wrkers are emplyees fr the purpses f federal taxatin. Ecnmic Realities Test If the wrker is ecnmically dependent n the hiring party, then the wrker is an emplyee. Factrs cnsidered: Cntrl If a D cntrls the manner in which the wrk is dne, rather than relinquishing cntrl t the wrker, the D is an emplyer This factr is similar t the entire cmmn-law test. Prfit and Lss If the wrkers are mre expsed t prfit and lss, then they are likely an independent cntractr Capital Investment Interrelated t prfit-and-lss, the mre f an investment wrkers make in tls, supplies, r ther initial utlays, the less likely they are t be emplyees Degree f Skill Required High degree f skill militates in favr f wrkers nt being emplyees Permanency The mre temprary the relatinship, the less likely it is t be an emplyment relatinship. Permanent arrangements (even if they are seasnal and recurring) favr finding that wrkers are emplyees. Integral Part f Hiring Party's Business 28 28

29 The mre integral the wrk is t the wuld-be emplyer's business, the mre likely it is that the persns ding such wrk are emplyees. Dependence f Wrkers The mre the wrkers depend upn incme frm the D, the mre likely it is that they are emplyees. Independent cntractrs ften have mre than ne party fr which they wrk. Fair Labr Standards Act (FLSA) which requires minimum wage This test is mre brad than the Cmmn Law test due t FLSA (wanting peple t get minimum wage) Prs and Cns fr Wrkers Prs fr Wrkers Dn t have t prve fault, any injury frm wrkplace qualifies fr cverage Yu can recver fr accidents that did nt happen with negligence Causatin and duty cncepts taken away, replaced w/ in the curse f and arising ut f emplyment Because yu dn't have t prve fault, there is n real need fr lawyers Generally get benefits like medical cst and part f lst wages Cns fr Wrkers Give up suing under trt law Thus, can t get punitive damages r kinds f cmpensatry like pain and suffering Needs t Be a Persnal Injury Physical-Physical: Generally cmpensable in mst jurisdictin Where bth the cause and the effect are physical Ex- Security camera falls frm ceiling and causes blackjack dealer t lse a finger. Physical-Mental: Generally cmpensable in mst jurisdictin Where the cause is physical and the effect is physical and mental Ex. security camera falls in frnt f blackjack dealer, wh lses her arm, causing a nervus breakdwn. Mental-Physical: Generally cmpensable in mst jurisdictin Where the cause is mental and the effect is physical Ex. Emplyee held up at gunpint, suffers emtinal distress causing her t injure herself. Mental-Mental: Nt held cmpensable in mst jurisdictins Where bth the cause and the effect are mental and there is n accmpanying physical cause r effect Has t Result Frm an Accident Ex. Emplyee is held up at gun pint and suffers a nervus breakdwn as a result. Lng term expsure is generally held t be nt an accident E.g. Asbests linked cancer Has t Occur In the Curse f Emplyment Recreatinal Activities: nt usually cvered? 29 29