* Torts  *

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1. ** Intentional Torts 

   1. Insane people, drunk people, children are all capable of committing an intentional tort & Transferred intentional tort exists (i.e., Transferred intentional tort is a doctrine that holds the D liable for an intentional tort he or she  intended to commit against A but, instead, accidentally committed against B. Namely, if the D intended to commit torts (e.g., battery, assault, false imprisonment, trespass to land or trespass to chattels: These torts will be discussed below) against A, but accidentally commits tort against B, the D can be held liable for the tort against B) **  

      1. Battery

         1. D must commit a harmful or offensive contact with P or something closely associated with the P (e.g., purse, bag) (i.e., a person pours a mug of hot water on another person or spits on another person or shooting a money bag held by another person)

         2. The victim need not be aware of the act at the time for the tort to have occurred (e.g., if a surgeon performing an appendectomy on an unconscious patient decides to take out the patient's spleen for his personal collection, the surgeon has committed a battery against the patient) 

         3. Aggravated Battery: Aggravated Battery is different from Battery in that the D intentionally or knowingly causes great bodily harm, permanent disability, permanent disfigurement or mayhem. It also applies when person uses a deadly weapon against the victim **

         4. Damages: Actual Damages are not required in Battery. Nominal Damages (a damage award issued by a court when a legal wrong has occurred, yet where no actual financial loss as a result of that legal wrong. Typically, when a nominal damage award is used, the P will be awarded $1 - $2) are accepted. And if the act was malicious, the P could recover punitive damages as well 

      2. Assault ( = Attempted Battery)

         1. The D must place P in reasonable apprehension and the apprehension must be of an imminent battery (e.g., threatening to strike a person with a weapon or dangerous object but ultimately not making contact with their body or pretending to kick | punch the victim or attempting to spit on them or verbal assault which cause fear of imminent danger to the victim)

         2. Note that the words alone lack immediacy and thus needs a menacing gesture. And even though there is a menacing gesture the words can eliminate the immediacy when the words are conditional or it is an action that will be made in the future (e.g., I will hit you if you come near or I will hit you later this afternoon)  

         3. The victim must be aware of the act at the time for the tort to have occurred **

         4. Aggravated Assault

            1. Aggravated Assault is an attempt to cause serious bodily harm to an individual with disregard for human life

            2. Factors that raise an assault to the aggravated level typically include

               1. the use of a deadly weapon,

               2. the status of the victim (many states punish assault on police officers, fire fighters and even teachers as aggravated assault. Generally, for such an assault to rise to the level of aggravated, the victim must have been performing his or her duty when assaulted and the perpetrator must have known of the victims status. In addition to possible punishment for aggravated assault, assaults on members of certain protected classes can constitute hate crimes. These can include assaults based on race, ethnicity, national origin, religion, sexual orientation, or disability of the victim)

               3. the intent of the perpetrator, and

               4. the degree of injury caused 

      3. False Imprisonment 

         1. The D must commit an act of restraint confining the P in a bounded area 

            1. Restraint: Physical barriers, physical force, threats of force, failure to release, invalid use of legal authority​ **

            2. Bounded area:​ No reasonable means of escape known/reasonably discoverable to the victim. Yet, it is not a bounded area if there is a reasonable means of escape that the victim can reasonably discover. Yet, if the way out will be dangerous, disgusting, humiliating and hidden that cannot be reasonably discovered, then the area is a bounded area 
               1. Example) "If you leave I will shoot you (in this situation, even if door is open the person will be liable for False Imprisonment)"

               2. Example) A person locking another person in a room without their permission

               3. Example) A person grabbing onto another person without their consent, and holding them so that they cannot leave (in this case if the person who was grabbed knows that he or she can leave, the person who grabbed will not be liable for False Imprisonment)

               4. Example) A security guard or store owner who detains someone for an unreasonable amount of time based on their appearance

               5. Example) An employer who detains someone for questioning for an unreasonable amount of time for suspected theft

               6. Example) Nursing home staff who medicates a patient without their consent under physical or emotional threat

         2. An omission can be an act of constraint if there was a pre-existing duty

            1. Example) A disabled person on flight is left alone on the plane and got trapped inside the plane (in this case the cabin crew is liable because they had a pre-existing duty to take care of disabled people) **

      4. Intentional Infliction of Emotional distress​ (IIED)

         1. D must conduct an extreme and outrageous conduct causing severe emotional distress, made intentionally or recklessly

            1. Outrageous conduct: Conducts that exceed all bounds of decency tolerated in a civilized society 

               1. Example) Outrageous conduct of the D is repetitive or continuous in nature (e.g., vulgar proposition repeated every day for a while, debt collector abuses often); 

               2. Example) Where the D is a common carrier or an hotel keeper who has a 'Duty of Courtesy'

                  1. Thus, generally mere insults are not regarded as an outrageous conduct, yet to common carriers or hotel keepers, merely insulting their clients will be regarded as an outrageous conduct

               3. Example) Where the P is part of a fragile class of people (e.g., young children, elderly people, pregnant women)

               4. Example) Where the D knows the P has emotional sensitivity, and exploits that (e.g., he or she is afraid of lizards, yet the D put a lizard on his or her desk) ** 

         2. Negligent IIED

            1. Generally, the IIED must be accompanied or caused by some physical impact or injury 

         3. Bystander IIED 

            1. When the D intentionally causes, severe physical harm to a third person and the P suffers severe emotional distress because of her relationship to the injured third person 

            2. In order for the D to be guilty for Bystander IIED, the P is generally required to prove the following: 

               1. the P was present when the injury occurred to the other person,

               2. the P was a close relative of the injured person, and

               3. the D knew that the P was present and a close relative of the injured person

      5. Trespass to Land

         1. Physical invasion of real property (i.e., land) with intent without permission & Intentionally Interferes with exclusive possession of land owned by P (Note that air, land and land below are included) 

            1. Physical Invasion  (It is not required that the D intended to enter wrongfully, which means even if the D entered the land by mistake, the D can be liable for trespass) 

            2. The physical act of intrusion onto land, even without significant damages or harm, is typically enough to support a trespass claim. In some states, such as California, annoyance and discomfort are enough to establish trespass to land ** 

      6. Trespass to Chattels & Conversion

         1. Intentional interference with the rights to possession by the P 

            1. Trespass to Chattels (small damage is made thus in this case remedy is the cost of repair)

            2. Conversion (the right of the possession is deprived which created a large damage thus in this case remedy is (i) the full market value of the item which needs to force sale of the item, or (ii) get back the possession)

   2. Affirmative Defenses of Intentional Torts  

      1. Consent: Consent by the other part is a defense to every intentional torts above **

         1. First, you need to look at whether the party had the capacity to give consent (i.e., generally child, intoxicated person, and mentally incapacitated person are deemed incapable of valid consent)

         2. Second, you need to look at the types of consent:

            1. Express consent - he or she expressly consents in words & acts

            2. Implied consent - custom and usage (e.g., activity where certain invasions are routine especially when playing sports such as boxing, where hitting is permissible by the rules; bump in a public bus) **

            3. Consent implied by law - when action is needed to save a life of a person or some other important interest in person or property (e.g., when a doctor sees a cyst during an operation of a person,  the doctor can remove a cyst that he or she sees)
            4. Limitation in Consent ​

               1. Any consent that was made under duress or fraud, the consent will be void

               2. All consent must not exceed its scope (e.g., during a Kendo match, if the player gets worked up and punches the other player on the face with his or her fist the player exceeded the scope of the consent) **

      2. Protective Privileges 

         1. Self-Defense ​

            1. ​Self-defense can be made when the threat is imminent or in progress (i.e., if the torts have been already committed, he or she cannot use self-defense)

            2. A person must have a good faith, reasonable belief in the genuineness of the threat and danger. A reasonable mistake as to the existence of the threat and danger is allowed

            3. Degree of Force – A person can only use force necessary to prevent the harm under the circumstances.  If excessive force is used, the defense claim is lost

            4. Retreat – A person need not attempt to retreat, yet there is a duty to retreat before using deadly force if it can be done safely, unless he or she is in his or her home **

         2. Defense of Others

            1. A person may use reasonable force to defend another when the D reasonably believes that the other person could have used the force to defend himself or herself

            2. A reasonable mistake as to whether the other person is being attacked or has a right to defend himself or herself is permitted

            3. Degree of Force – A person can use the same force that he or she could have used if the force were directed upon him or her. That is, the force used must be proportionate to the threat and danger **

         3. Defense of Property​

            1. A person may use reasonable force to prevent the commission of a tort against his or her real property or personal property by a trespasser

            2. A request to desist or leave to the trespasser must first be made unless it would clearly be futile or dangerous

            3. A reasonable mistake is allowed as to whether the intrusion has actually occurred by the trespasser, or whether a demand to desist was required or not

            4. Degree of Force – A person can use reasonable force yet not deadly force or force that entails a serious threat of bodily harm (i.e., vicious guard animal, traps) 

               1. Deadly force can only be used when a person is threatened to his or her life **

      3. Privilege of Arrest

         1. Felony arrest by the police officer

            1. Police officer must reasonably believe that a felony has been committed and that the person be arrested has committed it

               1. Mistake - A police officer may make a reasonable mistake 

            2. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred

         2. Misdemeanor arrest by the police officer 

            1. Police officer can make a misdemeanor arrest in case of a breach of peace, and the crimes must have been committed in the presence of the arresting party

         3. Force used by the police officer 

            1. Reasonable degree of force must be used

            2. No deadly force in misdemeanor arrests 

            3. Deadly force is allowed in felony arrests if the suspect possesses a threat of serious bodily harm (e.g., possess a deadly weapon) **

      4. Necessity

         1. The D may interfere with the real property or personal property of the P when it is reasonably and apparently necessary to avoid threatened injury to Public or Private Person:

            1. Public Necessity – When the D acts for the community as a whole or a significant group of people to protect them from any threat or danger ( = absolute defense)

               1. Example) The police are chasing a dangerous criminal D and he or she decides to hide out in the back yard of P where they eventually apprehend the D. The police could assert the "Public Necessity" defense if P tries to sue the police for trampling his or her garden. And here, because public necessity is an absolute defense, the police does not need to pay for any damages incurred during his or her break in 

            2. Private Necessity – D invades property of P to avoid a threatening emergency situation to protect an interest of his or her own. And during this emergency, if there was a destruction or serious injury incurred upon the P, the D must pay for any injury/actual fault he or she caused on the property ( = limited defense) 

               1. Example) The D is caught in a blizzard while hiking. The D knocked on a cabin door for help, but no one answers. The D break into the barn next to the house to stay safe and ride out the storm. D could assert the "Private Necessity" defense and will not be liable for “trespass to land”, yet must pay for any damages that is incurred during his or her break in **

            3. Notes 

               1. ​As long as the emergency situation continues, the private property owner must let the D remain on the property until the threatening emergency situation has passed

               2. The owner of property can be held liable for the additional damages to the D if they wrongfully eject the D in an emergency causing injury upon the D

               3. Necessity applies only to property torts (i.e., trespass to land, trespass to chattels, conversion) 

   3. Defamation 

      1. Definition: A statement that injures the reputation of the third party

      2. Requirements of Defamation 

         1. Defamatory statement based on specific facts (i.e., Language that tends to adversely affect the reputation of the P)

            1. The statement must negatively reflect on the trait of character of the P (i.e., honesty, competency, morality) 

            2. Statement of opinion is not actionable (i.e., giving sufficient reason to take legal action) unless it is based on specific facts

            3. If the statement is not defamatory on its face (i.e., which is clear and evident by inspection or the plain words that are written), the P may plead additional facts to establish defamatory meaning 

            4. Insults or name calling are not actionable

            5. Any living person may be defamed 

               1. Defamation of a deceased person is not actionable

               2. Corporations or partnerships may be defamed **

         2. Defamatory statement referring to a third person

            1. P must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the P (i.e., the P can identify by his or her actual name or other characteristics such as "US Attorney of a state") 

            2. If the statement does not refer to the P on its face, extrinsic evidence (i.e., outside evidence or evidence that is inadmissible or not proper before the court or the jury) may be offered to establish that the statement refers to the P

            3. Group defamation 

               1. If the statement refers to all members of a small group, the member of the small group must prove that he or she is a member of the group to recover ( = everybody wins)

               2. If the statement refers to only some members of a small group, P can recover if a reasonable person would regard the statement as referring to P

               3. If it is a large group, no member can prove that the statement as referring to him or her ( = nobody wins) **

         3. Publication or Communication

            1. Publication or communication to at least one person other than the P  

               1. The publication can be made either intentionally or negligently

               2. It is important to note that the intent is to publish, not the intent to defame anybody

         4. First Amendment Concerns

            1. When the defamation involves a matter of public concern (i.e., matter of civil, political or economical concern), the P must prove the two common law elements as follows:

               1. “Falsity” of the statement (Both private person and public figure must prove)

                  1. Private person: Any natural person or artificial person 

                  2. Public figure: An individual or entity that has acquired fame or notoriety or has participated in a particular public controversy 

               2. “Fault” on the part of the D (Both private person and public figure must prove as below) **

                  1. Public Figure – Malice (i.e., knowledge that the statement was false or reckless disregard as to its truth) must be proved by clear and convincing evidence (i.e., the evidence presented by a party during the trial must be highly and substantially more probable to be true than not)

                     1. If malice is proved --> damages presumed & punitive damages (i.e. monetary compensation awarded to injured party that is beyond the promised award to compensate the P for losses & to severely punish the wrongdoer) are allowed --> Liability is imposed 

                        1. Note that ill will or spite of D is not enough to constitute malice

                        2. Note that negligence (e.g. failure to check facts) is not enough to prove malice for public figures 

                  2. Private Persons – Need to prove Negligence (i.e., a failure to behave with the level of care that a person with reasonable prudence would have exercised under the same circumstances. Negligence will be explained in details later)

                     1. If negligence is proved --> damages presumed  --> Liability imposed

                     2. If malice is proved --> damages presumed and punitive damages are allowed --> Liability imposed 

                  3. Private Person with Private Matter - The P can recover punitive damages without showing malice **​

      3. Damages to the Reputation of the Plaintiff

         1. Generally, the damages to the reputation of the P depends on the type of defamation 

            1. Libel

               1. Written or printed defamatory language (including all types of broadcast) 

                  1. In the case of Libel, the P does not need to prove special damages, and general damages are presumed (i.e., Here, general damages represent the types of damages that cannot easily be assigned a monetary value, such as pain and suffering, loss of consortium and emotional trauma; while special damages are damages like medical bills and lost wages, which are “out of pocket” expenses”) **

            2. Slander

               1. Spoken or verbal defamation 

                  1. In this case of Slander, the P must prove special damages, unless defamation falls within slander per se (e.g., a certain language that is actionable as slander in and of itself without proof of special damages, such as the situation in which a person is falsely accused of having committed a crime), which generally are: 

                     1. Adversely reflect on the conduct of a person in his or her business or profession

                     2. Adversely reflect that a person has a loathsome disease (i.e., generally sexually transmitted disease)

                     3. Adversely reflect that a person is or was guilty of a crime involving moral turpitude (i.e., embezzlement, sexual abuse, etc.)

                     4. Adversely reflect of the unchastity of a woman (i.e., had sex before marriage)

                        1. Note that, special damages must be proved only when the statement does not fall within the four exceptions in the case of slander **

      4. Defenses to Defamation

         1. Consent: Consent is a complete defense

         2. Truth: Defendant may prove truth as a complete defense (i.e., the D reasonable believed the statement was true)

            1. Note that "Truth" is a complete defense to 'Defamation' but not a defense to 'Invasion of Privacy' (see below)​

         3. Privileges

            1. Absolute Privilege ( = always a privilege to deny he or she defamed the victim)

               1. statements between spouses

               2. statements by lawyers in debate

               3. statements by federal execute officers in the course of their duty

               4. statements in compelled broadcasts

               5. statements during judicial proceedings

               6. statements in judicial papers 

            2. Qualified Privilege ( = not always a privilege)

               1. public interest or interest of others to encourage candor is the purpose of the qualified privilege 

                  1. letters of recommendation 

                  2. statements made to a police investigation 

                     1. However, privilege may be lost if:

                        1. the statement is not within the scope of the purpose (Here it is important that the statement be within the topic of the subject matter), or 

                        2. the statement is shown that the speaker acted with malice (Here, it is important that the speaker must have a reasonable belief that the information is accurate) **

   4. Invasion of Privacy

      1. Types of Invasion of Privacy

         1. Appropriation of the Name or Likeness of the P for Commercial Advantage of the D

            1. Definition: Unauthorized used of the picture, name, or voice of the P for the commercial advantage by the D 

               1. Liability is limited to the advertisement or promotion of products or services by the D. Thus, mere economic benefit to the D, not in connection with the advertisement or promotion, is not sufficient for liability 

                  1. Exception - Newsworthy statements (i.e., the information discloses to the public about an important matter; or where the P is a public official/figure and the disclosed information is related to his or her status or enhances the understanding of the public role of the public official/figure)

         2. Intrusion on the Seclusion of the P

            1. Definition: Invasion on the seclusion of the P in a way that would be objectionable to a reasonable person 

               1. The P must have a reasonable expectation of privacy (e.g., peering through a key hole is intrusion, whereas pictures taken in a public place are not intrusion) 

               2. Note that there is no requirement for the D to physically enter the property of P (i.e., trespass), yet if trespass occurs it could be part of the intrusion 

         3. Publication of Facts that Place the P in False Light

            1. Definition: Widespread dissemination about a major falsehood of the P that is objectionable to reasonable person

               1. Note 1 – If the matter is “public interest”, malice (see Defamation above) on the part of D must be proved by the P in order for the P to be compensated 

               2. Note 2 – In this case, reasonable belief or honest mistake is not a defense **

         4. Public Disclosure of Private Facts

            1. Rule: Widespread dissemination of truthful and confidential/private information about P that is objection to a reasonable person

               1.  Exception: Newsworthy statements (see above)

      2. Causation of Invasion of Privacy

         1. All above “invasion of privacy” must have been proximately caused by the D

      3. Compensation 

         1.  In order to be compensated, the P need not prove special damages (i.e., damages like medical bills and lost wages, which are “out of pocket” expenses). The emotional distress and mental anguish are enough to be compensated

      4. Defense

         1. Consent by the P

         2. Defamation Privileges (see above)

            1. Note that in the case of Invasion of Privacy, the defamation privileges only apply in “Publication of Facts that Place P in False Light” & “Public Disclosure of Private Facts” 

   5. Misrepresentation

      1. Definition: An assertion by words or conduct that is not accord with the facts

      2. Types of Misrepresentation 

         1. Intentional Misrepresentation

            1. In order to be guilty under Intentional Misrepresentation, there must be:

               1. affirmative misrepresentation of a material fact by the D,

               2. the D knew or believed it to be false,

               3. had the intent to induce the P to act or refrain from acting,

               4. the P actually relied on the misrepresentation of the D,

               5. the reliance by the P was justifiable, and

               6. the P suffered actual pecuniary loss (i.e., any losses that can be measured in financial terms, such as medical bills, property damage, loss of wages) 

            2. Example) D is a used car salesman or saleswoman at a local car dealership. D is talking with P about purchasing a new car P has expressed interest in. The P asks D if the car is a good. The D says the cars are really good and like brand new even if the D knows they are not. The P buys the car and immediately has problems with the car. The D will be liable under Intentional Misrepresentation 

         2. Negligent Misrepresentation 

            1. In order to be guilty under Negligent Misrepresentation, there must be:

               1. affirmative misrepresentation in a business or professional capacity by the D,

               2. there was a breach of duty toward the P,

               3. the P actually relied on the misrepresentation by the D,

               4. the reliance by the P was justifiable, and

               5. the P suffered harm

            2. Example) D is selling a real estate to P, and P stresses a need for peaceful place. The D promises that the property is indeed peaceful. However, the house next door of the real estate is under construction, and the worksite causes a great deal of noise. Even if the D was not aware of this, the D made the claim because he or she assumed it was peaceful. Thus the D will be liable under Negligent Misrepresentation ** 

   6. Wrongful Proceedings & Relation Interference 

      1. Types of Wrongful Proceedings

         1. Malicious Prosecution (Criminal) Wrongful Civil Proceedings (Civil)

            1. In order to be guilty under Malicious Prosecution or Wrongful Civil Proceedings, there must be:

               1. institution of criminal proceedings against the P,

               2. the proceeding terminates in favor of the P,

               3. absence of Probable Cause by the D (i.e., insufficient facts for a reasonable person to believe that P was guilty, or the D did not believe the P was guilty),

               4. improper Purpose (i.e., the purpose was not bringing the person to justice), and

               5. the P suffered damages

                  1. Note that prosecutors are immune from liability 

         2. Abuse of Process

            1. In order to be guilty under Abuse of Process, there must be:

               1. intentional misuse of the legal process,

               2. act or threat to accomplish purpose, and 

               3. primary ulterior purpose resulting in damage to the P **

      2. Types of Relation Interference

         1. Interference with Business Relations

            1. In order to be guilty under Interference with Business Relations, there must be:

               1. an existence of a valid contractual relationship between the P and a third party, or valid business expectancy of the P

               2. the D had knowledge of the relationship or the expectancy

               3. the D Intentionally interferes with the relationship or the expectancy

               4. inducing a breach or termination of the relationship or the expectancy

                  1. Note that if the D was trying to obtain business for himself or herself in order to protect his or her interests, not liable under Interference with Business Relations **

   7. Negligence 

      1. Definition: Failure to exercise duty of care that a reasonably prudent person would exercise in the circumstances (i.e., In order for the D to be guilty under Negligence, the P needs to prove the factors of negligence, which are (a) Duty by the D, (b) Breach of Duty by the D, (c) Causation, and (d) Damages incurred to the P) 

         1. Duty 

            1. Rule: Duty of care is owed to foreseeable P (i.e., it is foreseeable to the D that the P will be injured by the conduct of the D)

               1. Cardozo View: P can recover compensation only if he or she can establish that he or she was in the zone of danger (i.e., a reasonable D would have foreseen a risk of injury to the P under the circumstances) 

               2. Andrew View: Everyone is foreseeable 

            2. Reasonable Standard of Care

               1. Basic Standard: An adult & a reasonable prudent person acting under similar circumstances 

                  1. However, if a person acts with special knowledge or skills, the standard becomes a reasonable prudent person with that special knowledge or skills **
            3. Standard of Care of Children
               1. Children are held to the standard of a child of a similar age, education, intelligence, and experience under similar circumstances
                  1. Note that child under 4 is usually without capacity to be negligent
                  2. In addition, it is important to note that children that are involved in adult activity (e.g., driving a car or a boat) may be required to conform to the Reasonable Standard of Care (see above)
               2. Attractive Nuisance Doctrine

                  1. Definition: A doctrineunder which a possessor of the premise may be liable for injuries to children who trespass on his or her premise if the injury results from a artificial and hazardous object or condition on the premise that is likely to attract children who are unable to appreciate the risk posed by the object or condition

                  2. Rule

                     1. The possessor of the land will be liable for the injury of the children if:

                        1. the possessor had the knowledge of the dangerous condition,

                        2. the possessor knows or should have known that the children frequently came into his or her premise,

                        3. the condition of the premise is likely to cause injury (i.e., the condition is a condition where a child cannot appreciate the risk)

                        4. the expense to remedy the condition is slight compared with the magnitude (high) of the risk   **

            4. Police & Firefighter Standard of Care

               1. Generally, a duty of care is imposed on the Police & Firefighter when a duty arises under the law of negligence, unless another  statute or common law provides otherwise

               2. Police & Firefighter are usually under a duty of care to protect an individual from a danger which the Police & Firefighter themselves have created under negligence **

            5. Premise Liability Standard of Care

               1. Issue: Under the premise liability, the factual scenario is 'a person enters a premise who he or she does not reside, and while the person is on the premise, he or she encounters a hazard and gets injured', which leads to the issue as to “what duty does the possessor of the premise have, to protect the entrance of the premise in order to fully protect a person from getting into the premise” 

               2. Duty of Possessor to those who are off-premise

                  1. There is no duty by the possessor to protect a person from natural conditions (i.e., no artificial construction made on the premise) of the off-premise unless the possessor had reasonable notice of the hazardous condition of the off-premise (e.g., constantly falling branches) **

               3. Duty of Possessor to those who are on-premise

                  1. In this case, there is a duty by the possessor when:

                     1. the P got injured by encountering dangerous static condition (e.g., a light bulb falls and hits the P on the head)

                     2. the P got injured by encountering activity occurring on the premise (e.g., a person tripped and fell because another person living in the premise pushed the person) **

                  2. Trespasser

                     1. Definition of Trespasser: Person entering into land or property of another person without permission

                     2. Types of Trespasser

                        1. Undiscovered (i.e., unanticipated) trespasser

                           1. In this case, there is no duty by the possessor to protect an undiscovered trespasser

                        2. Discovered (i.e., anticipated) trespasser

                           1. In this case, there is a duty to warn by the possessor to protect a discovered trespasser if:

                              1. the conditions of the premise is artificial, 

                              2. the conditions are highly dangerous, 

                              3. the condition is hidden/concealed, and 

                              4. the possessor has knowledge as to the artificial, highly dangerous, and hidden/concealed condition of the premise **

                        3. Licensee 

                           1. Definition of Licensee: a person who is on the property of another by authority of law (i.e., license given) or by the consent of the possessor (e.g., examples of licensees are guests to your home, people with license coming to the front door to sell products) 

                              1. In the case of licensee, there is a duty to warn by the possessor to protect a licensee if:

                                 1. the conditions of the premise is dangerous,

                                 2. the condition is hidden and concealed, and

                                 3. the possessor knew about the condition (i.e., there is a duty to notify the licensee of the dangerous, hidden and concealed condition, however, there is no duty to inspect or repair the condition on the part of the possessor) 

                        4. Invitee

                           1. Definition of Invitee: a person who is present in a place by the invitation of the possessor (e.g., examples of invitees are customers of all business)

                              1. In the case of invitee, there is a duty to warn by the possessor to protect the invitee if:

                                 1. the conditions of the premise is dangerous,

                                 2. the condition is hidden and concealed, and

                                 3. the possessor knew about the condition through reasonable inspection (i.e., there is a duty to inspect the property and notify the invitee of the dangerous, hidden and concealed condition, however, there is no duty to repair the condition on the part of the possessor) **

            6. ​Criminal Statutory Standard of Care ( = Negligent Per Se)

               1. Definition of Criminal Statutory Standard of Care 

                  1. The standard of care that assumes the action by the D is unreasonable if the conduct violates an applicable regulation or a statute

               2. Definition of Negligent Per Se

                  1. ​A legal doctrine that the D is presumed to have acted negligently if they violate a a regulation or a statute and thereby injured a person

                     1. Note that "Criminal Statutory Standard of Care" and "Negligence Per Se" is regarded as equal   

               3. Rule

                  1. There must be a regulation or a statute that clearly identifies “a class of person the regulation or the statute wants to protect” 

                  2. There must be a regulation or a statute that clearly identifies “a class of harm the regulation or the statute wants to prevent” 

                  3. The regulation or the statute must provide criminal penalty 

                  4. The P is within the class of person the regulation or the statute wants to protect **

               4. Exceptions

                  1. Compliance with the regulation or the statute will be "dangerous" (e.g., H while driving, suddenly saw a person crossing the street illegally right in front of H, and in order to avoid hitting the person, H immediately turned left in front of a no-left-turn-sign. In this case, the criminal statutory standard of care cannot be used because the compliance with the regulation or the statute was dangerous on the part of H, thus, in this case, instead of the Criminal Statutory Standard of Care, the Reasonable Standard of Care (see above) will be used. That is, 'what a reasonable person would have done in the similar circumstance of H' standard will apply)

                  2. Compliance with the regulation or the statute will be "impossible" (e.g., H while driving had a fatal breathing problem and became unconscious, and passed the intersection while the light was red. In this case, the criminal statutory standard of care cannot be used because the compliance of the regulation or the statute was impossible on the part of H, thus, in this case, instead of the Criminal Statutory Standard of Care, the Reasonable Standard of Care will be used. That is, 'what a reasonable person would have done in the similar circumstance of H' standard will apply) ** 

            7. Particular Standard of Care

               1. Professionals

                  1. A professional with special professional knowledge and skills is required to possess the average knowledge and skill of a member of the profession in similar communities 

            8. Negligent Infliction of Emotional Distress

               1. Definition: This arises when the D acts very carelessly that D must compensate the injured person for resulting mental or emotional injury (i.e., physical injury is not included)

               2. Types of Negligent Infliction of Emotional Distress

                  1. Bystander case

                     1. Rule

                        1. In order for the D to be guilty and compensate the bystander P under this case even though the P is not an injured party, the bystander P needs to prove that:

                           1. P is in close familial relationship with the injured party,

                           2. P was physically present at the incident where the injured party got injured,

                           3. P has actually seen or perceived the injury as a witness at the time the injured party got injured, and

                           4. P suffered subsequent mental or emotional distress due to the incident

                  2. Near Miss case

                     1. Rule

                        1. In order for the D to be guilty and compensate P under the Near Miss case, the injured P needs to prove that:

                           1. P can show D was absolutely negligent, 

                           2. P was in the zone of physical danger produced by the carelessness of D,

                           3. P nearly got physically injured (i.e., however did not get injured), and

                           4. P, instead, suffered subsequent mental or emotional distress due to the incident

                  3. Pre-existing Relationship case

                     1. Rule

                        1. In order for the D to be guilty and compensate P under the Pre-existing Relationship case, the injured P needs to prove that:

                           1. P & D had a pre-existing relationship, 

                           2. It was foreseeable that careless conduct (e.g., erroneous report of a death of a close person or false report of cancer of a close person by a family member D) by the D might cause distress, and 

                           3. P actually suffered subsequent mental or emotional distress due to the incident ** 

            9. No Affirmative Duty to Act

               1. Definition: There is no affirmative duty to rescue a person in peril, or prevent another person from injuring another person

               2. Exceptions

                  1. A person will have an affirmative duty to act if:

                     1. a person voluntarily assumes the duty of care for another person (i.e., If a person voluntarily began to help another person who is hurt, yet left without making any progress of the condition of him or her, the person will be liable for the injury) 

                     2. a person created the peril, even if the peril was created negligently or without fault 

                     3. a person is in a special relationship with the person who is in peril (e.g., family member (= relative as well), inn-keeper to client, shopkeeper to client, land possessor to invitee, employee to employer)

                     4. a person has an actual ability and authority to control an act of another person, and the person knows or should know that another person is likely to commit acts that could injure another person (e.g., a school teacher who discovers a gun in a backpack of a student has a duty to take control of the gun or call for help)

         2. Breach of Duty

            1. Rule

               1. P must identify the specific wrongful behavior of D and explain how the wrongful behavior of the D falls below the standard of care  

                  1. Exception

                     1. There is case where the P does not need to explain how the wrongful behavior of the D falls below the standard of care. This is called “Res Ipsa Loquitor Doctrine”

                     2. Res Ipsa Loquitor Doctrine

                        1. Definition: This is a case where negligence of the D can be inferred without any additional proof

                        2. Rule

                           1. For this doctrine to apply, there must be no other explanation for the injury other than it being caused by the negligence of the D. In other words, the injury P suffered is a type that would not have occurred if the D acted reasonably 

                           2. In order to use this doctrine, the P must show that the D was in exclusive control at the time of the accident. This implies no one else, including P, could have caused the accident except for D

                           3. If the P can establish this doctrine, there is no need to prove the components of negligence, like Duty of Care (see above) and breach. Instead, the P needs to show that P was injured

                           4. The common case that involves the doctrine is medical malpractice (e.g., a doctor leaving a tool in the body of a patient during surgery. Here, there is no other explanation for this occurrence other than a medical professional acted negligently) **

         3. Causation

            1. Definition: The act by the D is the cause of the injury to P

            2. Types of Causation

               1. Actual Causation

                  1. Definition: The first event of the act by the D, which caused harm to a person, and without the act by the D, the result would not have occurred

                  2. Types of Actual Causation

                     1. Cause in Fact: The injury would not have occurred if it were not for the act of the D

                     2. Unascertainable Cause Approach: This is the case where there were several acts by several D, yet only one caused the injury of the P and it is uncertain who caused the injury. In this case, the burden of proof shifts to all the D, and each D must show that his or her negligence is not the actual cause of the injury of the P. However, if the court cannot determine which D actually caused the injury of the P, the court will hold all of them jointly and separately liable

                     3. Fundamental Factor Test: This test gives the court to find whether there were several parties, not one particular party, that were the fundamental factor of the accident that caused the injury of the P. And if there were several parties that caused the injury of the P, all the parties will be jointly and severally liable 

               2. Proximate Causation

                  1. Definition: Proximate Causation in torts refers to an element of foreseeability. Namely, P must show both that (a) he or she would not have been injured without the act by the D, and (b) the act or failure to act by the D that caused the injury of the P was foreseeable

                     1. Note that the foreseeability in the context of proximate cause (i.e., primary cause of the injury of the P) is defined as, 'the D, as a person with normal judgment and intelligence should reasonably have foreseen that his or her negligent act would imperil others'. And if the act or failure to act by the D that caused the injury of the P was unforeseeable, the D is not liable for the injury of the P (i.e., whether the act caused by the D was foreseeable or unforeseeable depends on the jury (i.e., if the case is tried under a jury trial) or on the judge (i.e., if the case is tried under a bench trial) 

                        1. Additionally, note that the difference between the "actual cause" and "proximate cause" is ​actual cause is the first event that led to harm, while proximate cause is not the first event that led to harm. However, proximate cause is an act by the D which led to foreseeable consequences without an intervening force (i.e., an action by another). Thus, if an intervening force, that was not done by the D and was done coincidental or after the act of the D, has led to injure the P, it could break the chain of causation between the D and the harm, lessening the guilt of the D 

                           1. Example) While a driver was driving, he or she saw a sudden jaywalker step into the street, and in order to avoid the jaywalker, the driver turned right, and while turning right collided with another driver, injuring the another driver. Here, the “actual cause” of the injury of the another driver, is the driver who turned right, however, were it not for the jaywalker, the driver would not have collided with the another driver. Thus, the jaywalker would likely be considered the “proximate cause” of the injury of the another driver. Thus, the driver will be liable under “actual cause”, and the jaywalker will be liable under “proximate cause” for the injury caused to the another driver, which will lessen the the guilt of the driver

                     2. Indirect Cause

                        1. Definition: This exists when an intervening force (i.e., an action by another) appear after the D has committed his or her negligent act, and this intervening force either extends the injury of the P or combines with the act by the D to produce the injury of the P

                           1. ​Note that if there was unforeseeable intervening and superceding cause (i.e., such as act of god or criminal act) of injury of P, this should absolve D of any liability of P 

                        2. Issue: Whether the D will be liable for the extended injury P incurred due to the intervening force. Generally, the answer is yes (i.e., however, there are exceptions)  

                           1. Examples of Indirect Cause

                              1. Intervening negligent medical treatment

                                 1. Example) P who hurt his or her back due to a car accident because of the negligence of D, got an additional injury to the leg due to the negligence of a hospital staff while getting treatment. In this case, the D will still be liable for the injury to the leg, because it is considered foreseeable that the P would need medical care as a result of the negligence by D. It is also considered foreseeable that the medical care would be administered carelessly by the hospital staff. Therefore, the D would be liable for both the injury to the back (i.e., the harm D incurred) of the P & the injury to the leg (i.e., the hospital staff incurred) of the P. However, the D will not be liable for the injury to the leg if the hospital staff acted recklessly when giving medical care to the P (e.g., the hospital staff was drunk when giving medical care to the P)

                              2. Intervening response force

                                 1. Example) While P is riding a camel, D fires a gun and startles the camel. The camel rears up and throws P off of its back. If P is injured, D will be held liable for those injuries since the response of the camel to be startled is considered normal and, thus, foreseeable

                              3. Intervening negligent rescue 

                                 1. Example) D negligently pushes P into a river. Bystander sees that P has fallen into the river and attempts to rescue P. Bystander tries to rescue P as carefully as he or she can yet accidentally injure P during the rescue. Because ‘danger invites rescue’ it is considered foreseeable that any person would come to try to help an injured person like P. Thus, it is foreseeable that the rescue attempt would cause P a further harm. Therefore, D is liable for both the injuries he caused P directly and also for the injuries Bystander might have unintentionally inflicted on P

                              4. Intervening disease or injury 

                                 1. Example) D negligently hits P with his car. P, who is severely injured, is taken to the hospital where he or she gets surgery. During the surgery, bacteria in the air enters the surgical incisions of P, and P suffers a severe infection. Because it is reasonably foreseeable that the surgical incisions of P may become infected during a surgery, D will be held liable for the infection

                              5. Intervening escape

                                 1. Example) D negligently sets a fume in a building. The fume causes a panic and residents rush to try to escape the building. In the rush to get out, P is knocked to the ground and trampled by the other residents. According to the law, it is foreseeable that individuals threatened with harm will try to escape. It is also foreseeable that those efforts to escape may endanger others. Therefore, D is held liable for the injury of P, even though the injury was caused by the escaping crowd **

         4. Damage & Defense

            1. Damage

               1. Definition: In the context of Negligence, the D will be liable for all damages suffered by the P, if all elements of Negligence are satisfied 

                  1. Damages will be explained in details later soon in Remedies 

            2. Defense

               1. Definition: A claim the D could make in order to lessen his or her guilt

               2. Types of Defense

                  1. Contributory Negligence

                     1. Definition: When a person (i.e., the Plaintiff) does not act as a reasonable person and injury occurs, that person may be held entirely responsible for the resulting injury, even though another person (the Defendant) was involved in the accident. After the P files a negligence claim, the D may then assert a contributory negligence claim against the P, effectively stating that the injury occurred at least partially as a result of action of the P. This would be a contributory negligence counterclaim. And if the D is able to prove the contributory negligence claim, the P could be totally barred from recovering damages

                        1. Exception to Contributory Negligence

                           1. Last Clear Chance: This is a legal excuse for the P to use where the D failed to take advantage of the “chance to avoid” the incident that lead to the injury of the P. That is, the contributory negligence of the P will be excused if the D by exercising reasonable care and taking advantage of that last chance, might have avoided injuring the P, notwithstanding the negligence of the P

                     2. Example) D, a driver, strikes P, a pedestrian, who was crossing the street without carefully checking traffic or heeding the warning of the do-not-cross sign of the nearby streetlight. In this case, the D could assert a contributory negligence claim against the P. However, if the D had the last clear chance to avoid the accident, yet did not use the chance to avoid the accident, the P will be not be contributory negligent

                  2. Assumption of Risk

                     1. Definition: The risk arises when a P knowingly and voluntarily assumes a risk of harm connected with the negligence of the D. Therefore, if the P actually has assumed the risk, the P cannot recover damages for any harm resulting from the conduct by the D, even if the D was negligent or reckless. In order to prove the defense of assumption of risk, the D must show that:

                        1. The P had actual knowledge of the risk involved in the conduct or activity, or

                        2. The P voluntary accepted the risk, either expressly through agreement or implied by their words and conduct 

                           1. Note that it is usually necessary to prove that the danger was apparent, or that the nature of the conduct was inherently dangerous

                  3. Comparative Negligence

                     1. Definition:  When an accident occurs, there are times it is hard to decide who is to blame. And, at the end, it turns out that both parties are at fault. In this case, Comparative Negligence will be used. Comparative Negligence is a recovery for damages to be reduced by the percentage of fault attributable to the P and the D. That is, the P and the D will be accountable for the degree of damages their actions caused to the accident at issue

                     2. Types of Comparative Negligence

                        1. Pure Comparative Negligence

                           1. Definition: It allows a P to recover damages even if the guilt of the P is higher than that of the D. In this case, the P will recover from the D after deducting his or her percentage of responsibility 

                        2. Partial Comparative Negligence

                           1. Definition: It does not allow a P to recover if the guilt of the P equal or higher than that of the D. However, in the case where the guilt of P is lower than that of the D, the P will recover from the D after deducting his or her percentage of responsibility **

   8. Types of Torts Liability ​​