Torts – Intentional

Black’s Law Dictionary defines a tort as:

A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.  Tortious conduct is typically one of four types: (1) a culpable or intentional act resulting in harm; (2) an act involving culpable and unlawful conduct causing unintentional harm; (3) a culpable act of inadvertence involving an unreasonable risk of harm; and (4) a nonculpable act resulting in accidental harm for which, because of the hazards involved, the law imposes strict or absolute liability despite the absence of fault.

But what differentiates one tort from another?  Many things, but one of the most important goes to the culpability of the actor.  This is where intentional torts differ from negligence.

The Restatement 2d of Torts defines “intent” as a term denoting “that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.”  Black’s Law Dictionary defines “intentional torts” as “[a] tort committed by someone acting with general or specific intent.”

When studying for the MBE, there are quite a few topics and areas of law you need to cover.  Intentional torts cover one facet of the MBE.  Potential intentional torts for the MBE include:

A.  Harms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to

property interests, such as trespass to land and chattels, and conversion

B.  Defenses to claims for physical harms

     1.  Consent

     2.  Privileges and immunities: protection of self and others; protection of property interests; parental discipline; protection of public interests; necessity; incomplete privilege.

You can see the current list of all MBE topics here: 2016 MBE Subject Matter Outline.

Negligence Broken Down

Negligence.  That tort of all torts you studied in law school.  So many types and so many applications.  For the nitty-gritty, you should bunker down with your course notes, a good supplement, and the Restatement of Torts.  But if you want a refresher on the general definition, you’re in the right place.

The Restatement of Torts, 2d, defines the elements of a cause of action for negligence thus:

281.  Statement of the Elements of a Cause of Action for Negligence

The actor is liable for an invasion of an interest of another, if:

1. the interest invaded is protected against unintentional invasion, and
2. the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and
3. the actor’s conduct is a legal cause of the invasion, and
4. the other has not so conducted himself as to disable himself from bringing an action for such invasion.

Probably not the elements you remember from Torts class, but that’s because we’ve broken those elements down into easy, manageable portions: duty; breach; causation; damages.

The Restatement of Torts, 2d, defines negligence in detail:

282. Negligence Defined.

In the Restatement of this Subject, negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.  It does not include conduct recklessly disregardful of an interest of others.

The Restatement of Torts, 2d, also provides the burden of proof for a negligence claim:

328 A. Burden of Proof.

In an action for negligence, the plaintiff has the burden of proving

1. facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff,
2. failure of the defendant to conform to the standard of conduct,
3. that such failure is a legal cause of the harm suffered by the plaintiff, and
4. that the plaintiff has in fact suffered harm of a kind legally compensable by damages.

Those elements probably sound more familiar.  Duty; breach; causation; damages.  If you can remember those elements, along with their specifics that you learn in class or in your studies, you’ll be able to handle any negligence claim that knocks on your door.

Navigating Due Process

No person shall . . . be deprived of life, liberty, or property, without due process of law.  U.S. Const. Art. V (limits only the federal government)

No State shall . . . deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.  U.S. Const. Art. XIV sec. 1 (limits the states)

This simple phrase has sparked thousands of debates and hundreds of thousands of documents discussing what “due process” actually means.  Does it simply apply to the procedural aspects of the law?  Does it have a secondary meaning?  What did the writers of the 14th Amendment really mean?

The due process clause “incorporates not only the procedural guarantees of the Bill of Rights but the substantive limitations of the Bill of Rights as well.”  Constitutional Law in a Nutshell, pg. 216.  I’m certain you all recall the Lochner debates and discussions from your constitutional law courses, which covered all aspects of exactly what the government can and cannot do.  That debate encompasses the content of substantive due process, which is “a doctrine holding that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.”  Substantive due process, Cornell Legal Information Institute.  Essentially, at the substantive level, the due process clause acts “as the basis for the right of privacy.”  Acing Constitutional Law, pg. 155.  “This right has several dimensions to it, including a woman’s liberty to elect an abortion, the right to marry, the right of a family to live together, the right to refuse medical treatment necessary to sustain life, and aspects of reproductive autonomy.”  Id.

Seminal cases dealing with substantive due process include Roe v. Wade, 410 U.S. 113 (abortion); Meyer v. Nebraska, 262 U.S. 390 (language instruction in schools); Skinner v. Oklahoma, 316 U.S. 535 (reproductive rights and sterilization); Griswold v. Connecticut, 381 U.S. 479 (contraceptives and right to privacy); Village of Belle Terre v. Boraas, 416 U.S. 1 (family living together); Loving v. Virginia, 388 U.S. 1 (right to marriage); Troxel v. Granville, 530 U.S. 57 (parental rights); Bowers v. Hardwick, 478 U.S. 186 (sexual orientation); Lawrence v. Texas, 539 U.S. 558 (privacy in the home); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (right to refuse medical treatment).

“Procedural due process inquires into the way government acts and the enforcement mechanisms it uses.  When government deprives a person of an already acquired life, liberty or property interest, the Due Process Clauses of the Fifth and Fourteenth Amendments require procedural fairness.”  Constitutional Law in a Nutshell, pg. 274.  Essentially, the government must use a procedural framework that “promotes fairness and transparency.”  Acing Constitutional Law, pg. 125.  Rather than using a narrow definition of these terms, the Supreme Court has interpreted “life, liberty, or property” quite broadly.

When addressing a procedural due process issue, the Supreme Court of the United States created a two-step analysis:

1. Did the Government deprive a person of a life, liberty, or property interest?
2. What process is due?

As regards the first step, life is easily definable.  Liberty interests are “not only . . . a deprivation of freedom, but encompass[] some government action that has created a stigma to a person’s reputation, plus an additional harm, like an inability to obtain gainful employment.”  Acing Constitutional Law, pg. 127.  Property interests are “defined by state law and include[] not only traditional notions of personal property, but also legitimate expectations of entitlement, such as continued government employment and receipt of government benefits.”  Acing Constitutional Law, pp. 127-28.

Regarding the second step, the court adopted the Mathews v. Eldridge, 424 U.S. 319 test of three factors:

1. the private interest that will be affected by the official action;
2. the risk of erroneous deprivation of such interest through the procedure used, and the probable value, if any, of additional . . . safeguards;
3. the Government’s interest, including . . . fiscal and administrative burdens

In addressing a procedural due process issue, therefore, the court balances the different factors to come to their final conclusion.

In summation, substantive due process deals more with the types of liberty involved while procedural due process addresses how those liberties are affected by the government decision.

Parol Evidence Explained

The legal world is chock-full of terms and legalese that require an educated understanding in order to properly utilize them.  In the realm of Contract Law, these terms can be especially important to your client’s case.  One such term is the parol evidence rule.  I’m sure you all remember learning this in law school at one point, but do you remember what it means?

Black’s Law Dictionary defines it thus:

parol-evidence rule.  The common-law principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by evidence of earlier or contemporaneous agreements that might add to, vary, or contradict the writing.  This rule usually operates to prevent a party from introducing extrinsic evidence of negotiations that occurred before or while the agreement was being reduced to its final written form.

Essentially, the parol evidence rule binds parties to their final written agreement, regardless of oral or written evidence to the contrary.  This rule works, however, ONLY when it can be shown that the parties intended the written agreement at issue to be their “FULL and FINAL expression of their bargain.”

This does not mean, however, that you cannot advocate on  your client’s behalf to introduce parol evidence to the court.  You can, and should do so if applicable, so long as you can argue that the parties did NOT intend the contract at issue to be the final written agreement.  Of course, you may be able to pursue alternative means of retribution for your client if the court rules that the contract is, in fact, intended to be the final written agreement between the parties.

Be careful with your parol evidence usage, and always remember to advocate in your client’s best interests.

 

The Art of Contracts

We all remember the basic elements of a contract: offer, acceptance, consideration.  Those three little words were drilled into our brains all throughout 1L Contracts.  But do you remember what those three little words mean?  The Restatement of the Law, 2d, Contracts has the following to say about contracts:

§1.  Contract Defined

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

The requirements for formation of a contract include:

§9.  Parties Required

There must be at least two parties to a contract, a promisor and a promisee, but there may be a greater number.

§17.  Requirement of a Bargain

(1) Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.
(2) Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated in §§82-94.

§24.  Offer Defined

An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

§50.  Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise

(1) Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.
(2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.
(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.

§71.  Requirement of Exchange; Types of Exchange

(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.
(4) The performance or return promise may be given to the promisor or to some other person.  It may be given by the promisee or by some other person.

Still the same basic principles — offer; acceptance; consideration — but there is a bit more finesse and specification with what those words actually mean in relation to a contract.

A mere peppercorn is enough.

As with any area of law, understanding the terminology is vital to ensuring you assist your clients legally.  Did the “offer” actually invite acceptance?  Was the “acceptance” made in the “manner invited or required by the offer”?  Was the “consideration” bargained for?  Was it sufficient?

Make sure that you ask yourself these questions and many more as you analyze a contract situation.  If you do, you’ll go into the situation better informed and more prepared to advocate for your client in their best interests.

Who Has Privity?

The legal world abounds with rules and concepts that differ only slightly from one another, but that difference can make or break your legal case.  One such instance is the difference between assigning and subletting a lease in real property.  Essentially, both assigning and subleasing property result in the same end, i.e. someone new taking over the lease.  The legal rights and responsibilities of the new lessee, however, differ greatly dependent upon assignment vs. sublet.

What is the legal definition?

assignment.  The transfer of rights or property.  Black’s Law Dictionary (2014)

sublease. A lease by a lessee to a third party, transferring the right to possession to some or all of the leased property for a term shorter than that of the lessee, who retains a right of reversion.  Black’s Law Dictionary (2014)

When can a lessee transfer their rights in a lease?  The Restatement of the Law 2d, Property states:

§15.1 Freedom of Transfer

The interests of the landlord and of the tenant in the leased property are freely transferable, unless:

(1) a tenancy at will is involved;
(2) the lease requires significant personal services from either party and a transfer of the party’s interest would substantially impair the other party’s chances of obtaining those services; or
(3) the parties to the lease validly agree otherwise.

What happens when those rights are transferred?  The Restatement of the Law 2d, Property continues:

§16.1 Obligation Created by an Express Promise–Burden of Performance After Transfer

(1) A transferor of an interest in leased property, who immediately before the transfer is obligated to perform an express promise contained in the lease that touches and concerns the transferred interest, continues to be obligated after the transfer if:

(a) the obligation rests on privity of contract, and he is not relieved of the obligation by the person entitled to enforce it; or
(b) the obligation rests solely on privity of estate and the transfer does not terminate his privity of estate with the person entitled to enforce the obligation, and that person does not relieve him of the obligation.

(2) A transferee of an interest in leased property is obligated to perform an express promise contained in the lease if:

(a) the promise creates a burden that touches and concerns the transferred interest;
(b) the promisor and promisee intend that the burden is to run with the transferred interest;
(c) the transferee is not relieved of the obligation by the person entitled to enforce it; and
(d) the transfer brings the transferee into privity of estate with the person entitled to enforce the promise.

(3) The transferee will not be liable for any breach of the promise which occurred before the transfer to him.

(4) If the transferee promises to perform an express promise contained in the lease, the transferee’s liability rests on privity of contract and his liability after a subsequent transfer is governed by subsection (1)(a).

 

Crystal clear, correct?  Essentially, a lessee may transfer their rights in a lease as long as it does not violate §15.1.  This transfer may invest certain obligations in the transferee dependent upon what is transferred.  If the original lessee transfers their rights via assignment, they are essentially transferring all of their rights for the remainder of the lease, thereby establishing privity of estate between the transferee and the original lessor.  If the original lessee transfers their rights only partially, i.e. by subletting a portion of their lease (either rooms or a length of time), but retaining a portion of the lease for themselves, the transferee is NOT in privity of estate with the original lessor.

What does all this mean?  An assignee is treated as the original tenant under the contract between the lessor and the original lessee.  A sublessee is not; rather, a sublessee is essentially the tenant of the original lessee.  If the original lessee fails to make rent payments to the lessor, the lessor cannot sue the sublessee for those payments.

The difference comes about based on whether privity of estate exists.

privity of estate. A mutual or successive relationship to the same right in property, as between grantor and grantee or landlord and tenant.

In an assignment scenario, the assignee is in privity of estate with the original landlord, thereby making the assignee responsible for certain obligations that fall within that privity.  Contrarily, the sublessee does NOT have privity of estate with the original landlord.  In a sublease scenario, the original landlord’s only recourse for violations of privity of estate are against the original lessee.

The landlord (original lessor) may still sue the original lessee, regardless of assignment or sublease, if any terms of the contract are violated because the landlord and the original lessee remain in privity of contract UNLESS the landlord releases the original lessee from such obligations.

privity of contract. The relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so.

With privity of contract, both parties are obligated and both may sue each other if they fail to complete the terms of the contract.  In a subletting scenario, the sublessee cannot sue the original lessor, nor can the original lessor sue the sublessee.  Contrast this with the assignment scenario where, if the landlord agrees, essentially a new contract is created between the original lessor and the assignee, thereby creating privity of contract.

And for those visual learners out there, here’s a simple chart to help you remember who has privity with whom and when.