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TORTS:
INTENTIONAL
TORTS
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Torts to the Person
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Battery
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Assault
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False Imprisonment
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Intentional Infliction of Emotional
Distress
Defenses:
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Consent
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Self-Defense
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Defense of Third Person
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Defense of Land or Chattels
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Force to Effect Recapture of
Chattels Wrongfully Withheld
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Privilege of Arrest
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Torts to Property
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Trespass to Land
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Trespass to Chattels
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Conversion of Chattels
Defenses:
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Consent
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Privileged Invasion of Another's
Land to Reclaim Chattels
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Privilege to Exclude or Evict
Trespassing Chattels of Another
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Privileged Invasion of Another's
Land or Chattels as a Public necessity
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Privileged Invasion of Another's
Land or Chattels as a Private Necessity
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Privileged Invasions of Land or
Chattels to Abate a Nuisance
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NEGLIGENCE
Investigations should proceed through a
sequence of elements methodically finding an appropriate act or actionable
omission before turning to the issue of "duty," and that there
is a breach of duty before considering "causation."
Elements of the Prima Facie Case:
Act or Omission, Duty, Breach, Causation / Proximate Cause, and Damages
Defenses to Negligence
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Contributory Negligence:
Plaintiff's conduct is a contributing cause to his own injuries and
is a complete bar to any recovery for the negligence of the
defendant. There are exceptions. Many states reject this
as a defense and replaces it with Comparative Negligence.
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Comparative Negligence:
...rejects the notion that contributory negligence is always a bar
to recovery by plaintiff. It individualizes accident
recoveries on the parties in proportion to their fault.
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Assumption of the Risk:
It must be shown that the plaintiff recognized and understood the
particular risk or danger involved and voluntarily chose to
encounter it.
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(note:
Hawaii had adopted the doctrine of
modified comparative negligence. HRS § 663-31 (1995). Under
this doctrine, a claimant's action is barred if his negligence exceeds
the combined negligence of all defendants. Otherwise, the
claimant's recovery is diminished in proportion to his degree of
negligence. See also: http://www.mcandl.com/hawaii.html
for a summary on Hawaii Medical Malpractice law.)
STRICT LIABILITY
Investigations should determine whether the
facts involved fall into one of the recognized categories of cases in
which courts are willing to impose strict liability, liability without any
fault. Those facts are:
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Defendant's animals cause an injury; or
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Defendant is involved in an abnormally
dangerous activity
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Elements of the Prima facie case:
Act or Omission, Duty to Avoid Harm, Breach, Cause/Proximate Cause, and
Damages.
Defenses to Strict
Liability:
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Comparative Negligence
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Assumption of the Risk
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PRODUCTS LIABILITY
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Liability based on Intentional Torts (a
battery).
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Liability based on Negligence (harm
must be foreseeable).
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Liability based on Strict Liability
(defective product that caused injury).
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Liability based on breach of an express
or implied warrant (especially U.C.C. warranties of fitness for a
particular purpose and merchantability).
Defenses:
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Contributory negligence (but is no
defense to intentional torts).
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Comparative negligence
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Assumption of the Risk
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Disclaimers (for Strict Liability)
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Statute of Limitations (applies to
strict liability injuries)
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Preemption (federal legislation has
impliedly preempted state tort law on strict liability).
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Disclaimers (A manufacturer or seller
may limit or exclude warranties that would otherwise arise from the
sale of goods).
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Notice Requirements (Warranty actions
may be barred if the injured purchaser fails to give the seller
timely notice of breach).
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Statute of Limitations ( The usual
warranty limitations period is four years, running from the delivery
of the goods).
NUISANCE
Elements of the Prima Facie Case:
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Act by Defendant
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Non-trespass Invasion of Plaintiff's
Interest
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Intent, Negligence, or Strict
Liability (Defendant's Conduct)
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Substantial and Unreasonable Harm
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Causation
Defenses:
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Contributory Negligence except for
intentional nuisance.
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Assumption of Risk
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DEFAMATION
Element of the Prima Facie case at
common law:
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Publication to Third Person
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Understood as Defamatory of Plaintiff
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Allege Falsity
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Causation
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Damages
A prima facie case of defamation at
common law required the publication to some third person of a
statement that harmed the reputation of the plaintiff, thereby
causing the plaintiff to suffer damages. Except for the
defense of truth and for certain narrowly defined classes of
privileged communications, defamation was generally a strict
liability tort.
Defenses:
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Consent
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Truth
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Common Law Absolute Privileges
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Legislative privilege
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Judicial privilege
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Domestic privilege
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Common Law Conditional or Qualified
Privileges
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Fair Comment privilege
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Record Libel privilege
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Federal Preemptive privileges
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Defenses of Republishers
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SLAPP Suits (Strategic Lawsuits
Against Public participation)
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CONSTITUTIONAL PRIVILEGES
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Problems involving defamation should
also be investigated for invasion of the right of Privacy or the
Wrongful Causing of Emotional Distress.
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INTRUSIONS INTO PLAINTIFF'S PRIVATE
LIFE OR AFFAIRS
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Elements or the Prima Facie Case:
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Highly Offensive Intrusion by
Defendant into Plaintiff's Private Life
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Intent or Negligence
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Causation
Note:
Wiretapping Plaintiff's home would be
a clear invasion of privacy. But if Plaintiff sought a disability
pension or filed a personal injury complaint, an investigator's efforts
to photograph Plaintiff in public would not intrude on reasonable
expectations of privacy.
Note also
that: Trespass on
periphery of Plaintiff's land does not show unreasonable surveillance
and does not amount to invasions of privacy.
Defense:
Consent
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PUBLIC DISCLOSURE OF PRIVATE FACTS
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Elements of the Prima Facie Case:
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Highly Offensive Public Disclosure by
Defendant of Private Facts about Plaintiff
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No Legitimate Public Interest
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Fault in Making the Disclosure
Defenses:
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Truth is no defense
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Consent
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Constitutional Privilege
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APPROPRIATION OF PLAINTIFF'S NAME OR
LIKENESS
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Elements of the Prima Facie Case:
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Unauthorized use by Defendant of
Plaintiff's Name or Likeness for a Commercial Purpose
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Causation
Defense:
Newsworthiness
OTHER TORTS INCLUDE:
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Misrepresentation
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Injurious Falsehood
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Interference with Economic Relations
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Unjustifiable Litigation
Tort investigations are concerned with both
subjects at once, i.e., what interests of plaintiff should be protected
from what kinds of interferences by defendant.
The Bureau's services are predicated on
knowledge of Civil Laws (Torts) and their Defenses which is the primary
foundation for an investigator's perspicacity necessary for evidence
discovery and acquisition. Our requisite professional credentials
have earned us the compulsory credibility necessary to educe cooperation
from individuals with relevant and reliable information. We do more
than just take pictures. We know what to look for, what to ask, how
to ask, and whom to ask.
Our reports are comprehensive, thorough,
and may include addenda of supporting documentation, videos, photographs
and/or drawings.
Above all, we are committed to the
axiomatic norms of professionalism. All investigations are
confidential and conducted within the parameters and limitations of
authority using personal initiative in the management of all cases at a
nominal expense.
Talk to us for a free
consultation we may
save you an enormous amount of money on pre-trial discovery, investigation
inquiries, and evidence acquisition.
It is economically prudent to investigate
your case before litigation. Give us a call toll free at (800)
306-6682 or (808) 732-6999.
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The
Bureau of Private Investigation's is a Full Service
Investigation Company. Including access to an accredited private
Forensic Laboratory for DNA Y-Chromosome testing, Forensic Serology
& DNA analysis, Human Identification, and Paternity testing.
As a full service Agency, we can
customize investigations to meet your needs and budget.
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Check out our
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