by Professor Frank B. Cross
Defenses To Negligence
Comparative negligence: The Plaintiff’s recovery is reduced by his/her proportionate share of liability for the Plaintiff’s harm.
Assumption of risk: The Plaintiff assumed the risk if the Plaintiff: (1) saw the risk was present, (2) saw the implication of the risk and (3) assumed that risk. EXAMPLE: When you go skiing, you sign a waiver, thereby assuming the risk of injury, and you cannot later sue if you are injured.
Implied assumption of risk: Classic case – a baseball fan injured by a fly ball.
Torts Involving Property
Trespass: Any physical invasion of your property.
- This can be surface as well as subsurface (e.g., oil well drilling).
- There is no mistake defense for this intentional tort.
- The trespasser is deemed under the law to have intentionally crossed the property line.
- A trespasser can also be someone who is invited onto your property but overstays his/her welcome and refuses to leave after being asked to leave.
- At the moment he/she refuses to leave after being asked, he/she is deemed to be a trespasser.
Defenses to trespass:
- Necessity – Sometimes, there is a necessity to go onto private land.
- Public necessity: Go on to someone’s property to protect the safety of a substantial number of people.
- Private necessity: Must trespass to avoid personal
Conversion: Is the intentional taking of your property. It can be both a crime and a tort. Changing the locks on a home or an apartment is considered a conversion of all the contents inside. Withholding goods from a person who is legally entitled to those goods is also conversion. Remedy: Forced sale = the person who committed the conversion is required to pay FMV for the goods taken.
Trespass to chattels: Borrowing without permission or for longer than permitted, unwelcome touching or damaging of one’s personal property, not real property.
Nuisance: Where someone makes an unreasonable interference with your property.
- You can use your property however you want, provided you comply with the law (e.g., zoning) and your use of your land does not unreasonably interfere with the use of your neighbor(s)’ property.
- Even a noxious odor that wafts over from your property to a neighbor’s property can be a nuisance in tort law.
- Intent here requires only the intent to act, not the intent to harm. EXAMPLE: You put up a security light system on your property to protect your person and valuables which shines lights all through the night into your neighbor’s bedroom window, preventing the neighbor from getting any sleep.
Universal tort defense: consent: (1) express consent or (2) implied consent.
- NB: Consent is limited to the scope of consent. EXAMPLE: If someone loans you their car in NYC to pick someone up from the airport, you exceed the scope of consent if you drive the car to Philadelphia.
- Another defense – “moving to the nuisance.”
- You know of a hazardous waste site, and you move next to it.
- You cannot then sue for nuisance, even if it results in a harm to human health.
- You cannot kill/harm someone in defense of your property.
- BUT, you can kill/harm someone in defense of your person.
Emergency exception to intentional torts: Actual consent is not required in case of an emergency. EXAMPLE: A surgeon operates on a person’s heart. While doing so, the person goes into cardiac arrest. The doctor can do whatever he/she deems necessary in order to save the patient’s life, including, but not limited to, additional surgery. The law presumes you would have consented if you were able to do so.
Defamation: (1) Libel and (2) Slander
Libel: When you intentionally write (in writing) “factual” statements (not opinions) you know are not true about a person in order to damage his/her reputation. The more precise the statement, the more the Court construes it as a “factual” statements and not an opinion. EXAMPLE: John Doe is a thief. v. In my opinion, John Doe is a thief.
Slander: When you intentionally say (verbal) “facts” (not opinions) you know are not true about a person in order to damage his/her reputation.
- The reference to the person who is defamed must be specific to that person.
- The statement must be false. If it is true or substantially true, there is no Otherwise, there would be no freedom of speech.
- Substantially true EXAMPLE: You said the person was driving 145 mph. In fact, they were driving 146 mph.
- There is no defamation if the person defamed is in a one-on-one conversation with the tortfeasor.
- You cannot defame a person to himself/herself.
- The statement must be made to a third party.
- You cannot defame the dead.
- Saying someone is bankrupt or has filed for bankruptcy, personally or his/her business(es).
CAVEAT: If you said the person was bankrupt and it is not true or if you said it to harm the person’s business reputation, then you have defamed that person.
NB: Things change over time. Saying someone was “gay” in the 1940s would not have been actionable in a Court of law. Now, it would be actionable. Conversely, saying someone was a “Communist” in the 1950s would have been actionable. Now, it would not be actionable.
NB: You will be held liable for merely repeating a defamation you have heard, even if you believe it to be true when you heard it from the tortfeasor. The reason is because you are perpetuating the damaging communication. EXCEPTION: If you repeat it but state that you do not believe it to be true, you are protected from suit.
There is no liability for distribution of defamatory content. So, e.g., the USPS cannot be held liable for delivering a defamatory publication.