Presentation on theme: "INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS"— Presentation transcript:
1INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAMTitle SlideINTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS
2BUT FIRST, A QUICK REVIEW ______________________________ BROAD CATEGORIES OF TORT LAW:NEGLIGENCEINTENTIONAL TORTSSTRICT LIABILITY
3The failure to exercise ordinary care. NEGLIGENCEThe failure to exercise ordinary care.
4ELEMENTS OF NEGLIGENCE: Another review…ELEMENTS OF NEGLIGENCE:DUTY OF CAREBREACH OF DUTY BY TORTFEASOR (UNREASONABLE CONDUCTCAUSATION OF DAMAGES TO VICTIM ACTUAL CAUSEPROXIMATE CAUSEDAMAGES TO VICTIM (ACTUAL HARM)
5CAUSATION (TWO PRONGS) CAUSE IN FACTandPROXIMATE CAUSE
6FIRST PRONG: CAUSE IN FACT ACTUAL CAUSE TEST“BUT FOR…______…NO INJURY WOULD HAVE OCCURRED”SUBTANTIAL FACTOR TESTMULTIPLE PARTIES INVOLVED IN BRINGING ABOUT AN INJURY“X and Y were substantial factors in bringing about the alleged injury.”JOINT AND SEVERAL LIABILITYMULTIPLE PARTIES ACT TOGETHER TO CAUSE INJURYSECOND PRONG: PROXIMATE CAUSE (aka LEGAL CAUSE)WAS THE TYPE OF INJURY REASONABLY FORESEEABLE?
7REVIEW OF PREMISES LIABILITY What is an owner or an occupier’s liability for injuries that occur while a person is on their property?Trespasser (person wrongfully on land) = no duty,with exception for trespassing children.2 Licensee (person with express or implied permission tobe on land) = duty of reasonable care whichrequires correcting known dangers on the land.3 Invitee (business guest) = duty of reasonable care whichrequires repairing defects he knows or should knowof and discovering/correcting unknown dangers.
8CALIFORNIA IS DIFFERENT! CALIFORNIA LAW APPLIES TRADITIONAL NEGLIGENCE STANDARDS TO DETERMINE LAND OWNER/OCCUPIER LIABILITY
9CALIFORNIA CIVIL CODE SECTION 847 PROVIDES LAND OWNER IMMUNITY FROM LIABILITY FROM ANY PERSON COMMITTING CERTAIN LISTED FELONIES (CURRENTLY 25) (FELONY = 1 YEAR OF JAIL TIME OR MORE.) LESSOR INCLUDED OFFENSES and MISDEMEANORS ALSO PROVIDE LAND OWNER IMMUNITY.Sampling of the list: MURDER, RAPE, ROBBERY, LEWD ACTS, ASSAULT WITH A DEADLY WEAPON, KIDNAPPING, DRUG DEALING, GRAND THEFT.
10CALIFORNIA PREMISES LIABILITY HOW TO ANALYZE CALIFORNIA LAND OWNER LIABILITYFIRST – GENERAL NEGLIGENCE ANALYSISDUTY TO FORESEEABLE PERSONS BREACHCAUSATIONACTUAL CAUSEFORESEEABLE INJURYDAMAGESSECOND – ANY DEFENSES AVAILABLE TO DEFENDANT* WAS THE PLAINTIFF COMMITTING A CRIME?
11Vicarious LiabilityWhere someone is held legally accountable for the negligence of another person acting on his or her behalf, even though the first person was not involved in the act, did nothing to encourage the act, and may even have attempted to prevent it.
12Vicarious Liability of Employers Respondeat Superior (“let the master answer”): an employer is responsible for most harm caused by an employee acting within the course and scope of employment.a) Coming and going ruleb) Frolic and detour rulec) Independent contractors
13Coming and Going RuleEmployers not usually held liable for employees traveling to and from work. Exception – if employee is performing work-related activities while coming or going from work.
14Frolic and Detour RuleAn employee making a MINOR deviation from business for personal purposes is still acting within the scope of work. If the deviation is SUBSTANTIAL, the employer is not responsible.
15Independent Contractor Generally, an IC is someone who acts according to a contract. The IC controls how they accomplish the job. Employer is not held liable for IC’s negligent acts. Two broad exceptions:IC engaged in inherently dangerous activities – i.e. blasting.The duty engaged in by IC is simply nondelegable – i.e. putting up a fence around a construction site.
16Motor Vehicle Vicarious Liability The general rule is that an auto owner is not vicariously liable for the tortious conduct of another person driving their auto.BUT WAIT – Don’t forget about your family.
17NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (“NIED”) Outrageous conduct by the defendant(2)that the defendant should have anticipatedwould produce(3)significant and reasonably foreseeableemotional injuries to a victim,(4) thus, breaching a duty of reasonable careto avoid causing such emotional harm to,(5) a reasonably foreseeable victim.
18CALIFORNIA REQUIRES THAT A BYSTANDER BE RELATED TO THE INJURED PARTY TO RECOVER FOR EMOTIONAL DISTRESS. DILLON v. LEGG, 68 Cal.2d 728CALIFORNIA LAW STRESSES THE FORESEEABILITY ASPECT OF NEGLIGENT ACTS.
19NEGLIGENCE PER SEBehavior or conduct that is presumed negligent as a matter of law because it violated a statute or ordinance.Example – speeding laws.
20DEFENSES TO NEGLIGENCE 1. Contributory Negligence - At common law = defendant out of luck, modern view favors comparative analysis.2. Last Clear Chance - Essentially Plaintiff’s rebuttal to the defense of contributory negligence3. ASSUMPTION OF RISK1 – Voluntary assumption of a known risk2 – A full appreciation of the danger involved in facing the risk4. COMPARATIVE NEGLIGENCE - Apportionment of fault – offsets ones own negligence against another5. STATUTE OF LIMITATIONS
22The Johnson family recently purchased a “fixer upper” home in Sacramento. Unbeknownst to them, the previous owner, a die-hard survivalist, now off to parts of the world unknown, had hidden dynamite underneath the floor boards. The Johnson’s knew of his survivalist practices as they had found two false walls that had emergency-medical equipment and water purifiers hidden in them. During the Johnson’s renovation efforts, they invited over their neighbor to help them tear up the old living-room floor. During the removal of the boards, Mr. Johnson’s hammer caused two sticks of hidden dynamite to explode. The explosion injured Mr. Johnson and his son, along with his neighbor, Mr. Isosue. Two years later Mr. Isosue serves his personal injury lawsuit on the Johnsons. They come to you for advice. Please advise as to the following only:Was Mr. Isosue’s injuries caused by the Johnson’s negligence?Any potential defenses the Johnson’s may have.
23Negligence is the failure to exercise reasonable care Negligence is the failure to exercise reasonable care. Negligence requires duty, breach, causation, and damages. Here, under common law, the Johnson’s owed Isosue a duty to warn of all known dangers, as he was a licensee. Under California law, the Johnson’s owed Isosue a duty of reasonable care. In either case, Isosue will likely claim that the Johnson’s breach of that duty, namely, the Johnson’s failure to warn him of survivalist issues led to his injuries. The key question here is causation, or whether or not the Johnsons caused his injuries. Causation requires two elements be met:Actual Cause – But for the Johnson’s inviting him over to assist in remodeling their home, and failing to warn him of potential dangers, Isosue would not have been injured by the explosion. Or, but for Mr. Johnson’s hammer igniting the dynamite, Isosue would not have been injured.Proximate Cause – The focus on whether the Johnson’s proximately caused Isosue’s injuries rests on how foreseeable Isosue’s injuries were. Here, the facts show that the Johnsons knew of the former owner’s survivalist mentality as they had discovered emergency-medical equipment and water systems behind false walls. Isosue will likely argue that the type of injuries he sustained were foreseeable as the Johnsons had prior notice and should have expected other dangerous survivalist objects to be hidden in the house.However, the facts do not show that anything dangerous was found by the Johnsons, in fact, whatever objects were found, were there for emergencies. Also, everything was found in false walls - not under any floor boards. It is very unlikely that finding medical and water supplies, objects intended to preserve life, would cause anyone to suspect that dangerous dynamite would be hidden elsewhere.Therefore, the Johnsons can successfully argue that they did not legally cause Mr. Isosue’s injuries and are not liable for negligence.
24DEFENSES TO INTENTIONAL TORTS INTENTIONAL TORTS ANDDEFENSES TO INTENTIONAL TORTS
25INTENTIONAL TORTSThe deliberate commission of an injurious act to another person or that person’s propertyThe “act” required = volitional movementIntent may be a) specific (intend to bring about consequence, or b) general (substantial certainty)
26Injuries to PersonsBattery: an intentional, unconsented touching of another person in an offensive or injurious manner. Also includes touching of intimately connected objects. I.e. - A purse or a cane.Assault: a threatened or attempted battery. (an incomplete battery)
27BATTERY Harmful or offensive contact To plaintiff’s person Intent CausationNOTE: Harmfulness and offensiveness are judged by the reasonable person standard.
28ASSAULTAct by defendant creating a reasonable apprehension in plaintiff.Of immediate harmful or offensive contactIntentCausationNOTE: If defendant has the apparent ability to commit a battery – good enough. Apprehension is not fear/intimidation.
29FALSE IMPRISONMENTAct or omission by defendant that confines or restrains,To a bounded areaWithout consentNo reasonable means of escape
30False Imprisonment cont’d. Bounded area – Freedom of movement limited in all directions. Must have no reasonable means of escape known to plaintiff.Physical barriersPhysical forceThreats of forceFailure to releaseInvalid use of legal authorityLength of time is irrelevant.Future threats and moral pressure are insufficient.Plaintiff must KNOW of or be harmed by the confinement.
31INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Act by defendant amounting to EXTREME and OUTGRAGEOUS conductIntent or recklessnessCausationDamages – severe emotional distressNote: Recklessness = indifference to the consequences.
32FRAUD AND MISREPRESENTATION False statement intended to deceiveKnowledge of falsity of statementsStatements designed to entice surrendering something of valueInnocent party suffers some damageInnocent party is injured
33ABUSE OF PROCESS (& malicious prosecution) Misuse of a legal proceeding, or threat of such misuseMisuse to achieve unlawful objectivesInjury to the victim as a result of the misuseNOTE: Filing mechanic’s liens, abusing a child custody hearing…
34Invasion of privacyDefined: Public exploitation of another’s private affairs in an unreasonably intrusive manner.Courts currently recognize 4 hybrids of invasion of privacyAppropriation – wrongful takingUnreasonable intrusionPublic disclosure of private facts – unauthorized public revelation - truth is not a defenseFalse light in the public eye – spurious opinions or statements.NOTE: Objectionable to the reasonable person.
35DEFAMATION LIBEL and SLANDER Defamation = Verbal communication of a false and disparaging statement to a third party.Libel = Written defamation.Written or verbal statementFalse and defamatory (hint – defenses…)Communication to third partyHarm to victim’s reputation in the community
36Reputation in the community? Can be comprised of “one” other person.Can be comprised of a handful of close associates.Or can be the nation.
37What about public figures? Movie stars, high-level government employees, television celebrities.These individuals must prove actual malice – high standard of proof required.Actual malice = Knowledge that the statement was false, or a reckless disregard as to the falsity of statement.
38SLANDER PER SE Per se = automatic or presumed. Some words or statements are by themselves defamatory and no injury or damage are required.1. Imply criminal conduct2. Harmful to a business3. Loathsome and communicable diseases.
39DEFENSES TO INTENTIONAL TORTS TruthPrivilegeConsentMore later on…
40Intentional torts Injuries to property Trespass to landTrespass to chattelConversionOthers in the book -Toxic tortsSlander of titleCommercial disparagementDefamation by computer
41Trespass to land Required elements: Physical invasion of plaintiff’s real property.IntentCausation
42Trespass to land cont’d. Real property includes the surface, airspace, or subterranean space for a reasonable distance.Defendant only needs to have intended to enter on that piece of land – doesn’t need to know who owned it.Invasion may be made by a person or object (such as a baseball.) Intangible invasion may lead to a nuisance action – later class.
43Trespass to chattel Required elements: An act that interferes with plaintiff’s right of possession in the chattelIntentCausationDamages
44Trespass to chattel cont’d. Two types of interference to right to possess:Intermeddling (direct damage)DispossessionDamagesActual damages – not necessarily to the chattel, but at least to the possessory right – are required.
45CONVERSION Required elements: Act that interferes with plaintiff’s right of possessionThe interference is so serious that it warrants requiring defendant to pay the chattel’s full valueIntent, andCausation
46Conversion continuedActs of conversion – include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, damaging, or misusing a chattel.Seriousness of Interference – The longer the withholding period and extensive use, the more likely it is a conversion. Lesser interference = trespass to chattels.Only tangible personal property qualifies.Plaintiff can ask for $$$ or recovery of chattel.
47That’s it for tonight! Don’t forget to take a practice written exam home…