INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS TORT LAW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM Title Slide INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS

BUT FIRST, A QUICK REVIEW ______________________________ BROAD CATEGORIES OF TORT LAW: NEGLIGENCE INTENTIONAL TORTS STRICT LIABILITY

The failure to exercise ordinary care. NEGLIGENCE The failure to exercise ordinary care.

ELEMENTS OF NEGLIGENCE: Another review… ELEMENTS OF NEGLIGENCE: DUTY OF CARE BREACH OF DUTY BY TORTFEASOR (UNREASONABLE CONDUCT CAUSATION OF DAMAGES TO VICTIM ACTUAL CAUSE PROXIMATE CAUSE DAMAGES TO VICTIM (ACTUAL HARM)

CAUSATION (TWO PRONGS) CAUSE IN FACT and PROXIMATE CAUSE

FIRST PRONG: CAUSE IN FACT ACTUAL CAUSE TEST “BUT FOR…______…NO INJURY WOULD HAVE OCCURRED” SUBTANTIAL FACTOR TEST MULTIPLE PARTIES INVOLVED IN BRINGING ABOUT AN INJURY “X and Y were substantial factors in bringing about the alleged injury.” JOINT AND SEVERAL LIABILITY MULTIPLE PARTIES ACT TOGETHER TO CAUSE INJURY SECOND PRONG: PROXIMATE CAUSE (aka LEGAL CAUSE) WAS THE TYPE OF INJURY REASONABLY FORESEEABLE?

REVIEW 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 to be on land) = duty of reasonable care which requires correcting known dangers on the land. 3 Invitee (business guest) = duty of reasonable care which requires repairing defects he knows or should know of and discovering/correcting unknown dangers.

CALIFORNIA IS DIFFERENT! CALIFORNIA LAW APPLIES TRADITIONAL NEGLIGENCE STANDARDS TO DETERMINE LAND OWNER/OCCUPIER LIABILITY

CALIFORNIA 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.

CALIFORNIA PREMISES LIABILITY HOW TO ANALYZE CALIFORNIA LAND OWNER LIABILITY FIRST – GENERAL NEGLIGENCE ANALYSIS DUTY TO FORESEEABLE PERSONS BREACH CAUSATION ACTUAL CAUSE FORESEEABLE INJURY DAMAGES SECOND – ANY DEFENSES AVAILABLE TO DEFENDANT * WAS THE PLAINTIFF COMMITTING A CRIME?

Vicarious Liability Where 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.

Vicarious 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 rule b) Frolic and detour rule c) Independent contractors

Coming and Going Rule Employers 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.

Frolic and Detour Rule An 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.

Independent 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.

Motor 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.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (“NIED”) Outrageous conduct by the defendant (2)that the defendant should have anticipated would produce (3)significant and reasonably foreseeable emotional injuries to a victim, (4) thus, breaching a duty of reasonable care to avoid causing such emotional harm to, (5) a reasonably foreseeable victim.

CALIFORNIA REQUIRES THAT A BYSTANDER BE RELATED TO THE INJURED PARTY TO RECOVER FOR EMOTIONAL DISTRESS. DILLON v. LEGG, 68 Cal.2d 728 CALIFORNIA LAW STRESSES THE FORESEEABILITY ASPECT OF NEGLIGENT ACTS.

NEGLIGENCE PER SE Behavior or conduct that is presumed negligent as a matter of law because it violated a statute or ordinance. Example – speeding laws.

DEFENSES 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 negligence 3. ASSUMPTION OF RISK 1 – Voluntary assumption of a known risk 2 – A full appreciation of the danger involved in facing the risk 4. COMPARATIVE NEGLIGENCE - Apportionment of fault – offsets ones own negligence against another 5. STATUTE OF LIMITATIONS

But first, a word from our sponsor…

The 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.

Negligence 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.

DEFENSES TO INTENTIONAL TORTS INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS

INTENTIONAL TORTS The deliberate commission of an injurious act to another person or that person’s property The “act” required = volitional movement Intent may be a) specific (intend to bring about consequence, or b) general (substantial certainty)

Injuries to Persons Battery: 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)

BATTERY Harmful or offensive contact To plaintiff’s person Intent Causation NOTE: Harmfulness and offensiveness are judged by the reasonable person standard.

ASSAULT Act by defendant creating a reasonable apprehension in plaintiff. Of immediate harmful or offensive contact Intent Causation NOTE: If defendant has the apparent ability to commit a battery – good enough. Apprehension is not fear/intimidation.

FALSE IMPRISONMENT Act or omission by defendant that confines or restrains, To a bounded area Without consent No reasonable means of escape

False Imprisonment cont’d. Bounded area – Freedom of movement limited in all directions. Must have no reasonable means of escape known to plaintiff. Physical barriers Physical force Threats of force Failure to release Invalid use of legal authority Length of time is irrelevant. Future threats and moral pressure are insufficient. Plaintiff must KNOW of or be harmed by the confinement.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Act by defendant amounting to EXTREME and OUTGRAGEOUS conduct Intent or recklessness Causation Damages – severe emotional distress Note: Recklessness = indifference to the consequences.

FRAUD AND MISREPRESENTATION False statement intended to deceive Knowledge of falsity of statements Statements designed to entice surrendering something of value Innocent party suffers some damage Innocent party is injured

ABUSE OF PROCESS (& malicious prosecution) Misuse of a legal proceeding, or threat of such misuse Misuse to achieve unlawful objectives Injury to the victim as a result of the misuse NOTE: Filing mechanic’s liens, abusing a child custody hearing…

Invasion of privacy Defined: Public exploitation of another’s private affairs in an unreasonably intrusive manner. Courts currently recognize 4 hybrids of invasion of privacy Appropriation – wrongful taking Unreasonable intrusion Public disclosure of private facts – unauthorized public revelation - truth is not a defense False light in the public eye – spurious opinions or statements. NOTE: Objectionable to the reasonable person.

DEFAMATION LIBEL and SLANDER Defamation = Verbal communication of a false and disparaging statement to a third party. Libel = Written defamation. Written or verbal statement False and defamatory (hint – defenses…) Communication to third party Harm to victim’s reputation in the community

Reputation in the community? Can be comprised of “one” other person. Can be comprised of a handful of close associates. Or can be the nation.

What 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.

SLANDER 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 conduct 2. Harmful to a business 3. Loathsome and communicable diseases.

DEFENSES TO INTENTIONAL TORTS Truth Privilege Consent More later on…

Intentional torts Injuries to property Trespass to land Trespass to chattel Conversion Others in the book - Toxic torts Slander of title Commercial disparagement Defamation by computer

Trespass to land Required elements: Physical invasion of plaintiff’s real property. Intent Causation

Trespass 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.

Trespass to chattel Required elements: An act that interferes with plaintiff’s right of possession in the chattel Intent Causation Damages

Trespass to chattel cont’d. Two types of interference to right to possess: Intermeddling (direct damage) Dispossession Damages Actual damages – not necessarily to the chattel, but at least to the possessory right – are required.

CONVERSION Required elements: Act that interferes with plaintiff’s right of possession The interference is so serious that it warrants requiring defendant to pay the chattel’s full value Intent, and Causation

Conversion continued Acts 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.

That’s it for tonight! Don’t forget to take a practice written exam home…