Torts Checklist

o Proximate causes: Π or injury too remote?

o IIED:

o Extreme and outrageous conduct

§ exceeding common bounds of decency

· fragile Π?

· common carrier?

· continuous?

o Intent to Cause Emotional Distress can be found where Δ

§ knows with substantial certainty the conduct will cause severe emotional distress or

§ acts w/reckless indifference to a high probability of this result.

o Causation

o Damages: severe emotional distress. physical harm is not required.

o Invasion of privacy

o Appropriation

§ unauthorized use of plaintiff’s picture or name

§ for defendant’s commercial advancement

o intrusion into Plaintiff’s seclusion

§ intrusion

· act of prying or

· intruding on Π’s affairs or seclusion of the plaintiff’s privacy (reas expectation of privacy

· objectionable to a reasonable party

§ the thing intruded upon must be private.

o False light: a prima facie case for false light requires Π prove

§ publication of facts

§ about Π

§ by Δ placing Π in a

· malice on the part of the Δ where the matter is in public interest

§ false light in the public eye

· false light must be objectionable to a reasonable person

o public disclosure of private facts

§ disclosure

· disclosure is objectionable to a reasonable person

§ private facts

§ to the public (a subst’l number of people)

· NEWSWORTHINESS DEFENSE

o DEFENSES

§ Consent and asb/qualified privilege

o Products liability: strict liability, negligence, intentional tort (battery, misrep), warranties (Express implied)

o strict liability: defective product, foreseeable plaintiff, duty to make safe, causation, damages

§ defective product and defect was there when left defendant’s control.

· manufacturing defect

o consumer expectation: product is dangerous beyond expectation of ordinary consumer

· design defect: all products of that model are defective

o consumer expectation

o feasibility of alternatives test: less dangerous design available and feasible

§ utility of product

§ feasibility of alt

§ magnitude of risk

§ knowledge of risk

· inadequate labeling: failure to adequately warn

§ duty to Π

§ duty to make safe

§ causation

§ Defenses

· contrib negligence is not a defense to products liability

o misuse of product is reasonably foreseeable

· assumption of risk

o know risk

o voluntarily assumed it

o causation issues

§ proximate cause:

· risk too remote

· reasonable foreseeable misuse of product

· Intermediary retailer or MD: negligent failure to discover or warn of a defect is not a superseding cause unless gross negligence

o Negligence

§ duty to take reasonable steps to mitigate damages

§ breach: balancing test

· easy to label, fix defect...

· risk and magnitude of injury

o intentional battery

§ harmful or offensive contact

§ intent/substantially certain

o intentional misrep

o warranties

§ express:

· no disclaimers to express warranties allowed

§ implied warranty of merchantability

· fit for ordinary purpose

o not fit w/o adequate label...

§ fit for partic purpose

· seller knows of purpose

· buyer relies

o defamation

o publication

o defamatory language

o of or concerning plaintiff

o damage

§ general damage to reputation presumed in libel and slander per se

· business/prof, chastity, disease, moral turp

§ special damages must be plead for regular slander

o constitutional limits

§ defendant must prove fault and falsity where public official or public matter concerned

· public official requires a showing of malice: reckless

· private person but public matter: negligence

o defenses

§ absolute privilege: judicial proceedings, legislative hearings, between spouses

§ qualified privilege: interest of recipient, records of public proceedings

· can’t abuse privilege

o malicious prosecution

o institution of criminal/civil proceedings

o for an improper purpose

o without probable cause/merit

o termination of proceedings in favor of Π

§ dismissal w/o prejudice?

o damages

o If coupled with PR

§ duty not to file a frivolous claim

·

o abuse of process

o wrongful use of process for

o ulterior purpose

o definite act or threat against π to accomplish purpose

o False Imprisonment

o Act of restraining Π

§ physical act

§ threat of harm

§ omission of act of release where duty to act: airplane, boat

o to a bounded area

§ no reasonable means of escape

o Π must be aware of confinement OR suffer injury as a result

o defense of shopkeeper’s privilege

§ reasonable manner, reasonable time, if reasonable belief that theft has occurred

o Negligence

o duty to whom: is Π too remote? public policy

o duty of care:

§ who is defendant? landowner, common carrier, professional

o breach:

§ neg per se

· statue: class of protected persons, class of harm

§ res ipsa:

· type of accident likely result of negl

· more likely that not it was negligence of this Δ

· no contributory negligence

o causation:

§ remoteness

§ superseding causes

o damages

§ actual: collateral source rule

§ causal

§ foreseeable: remoteness/superseding

§ unavoidable: duty to mitigate