10. Torts Flashcards
Cause-In-Fact Tests
Two Tests:
1. BUT FOR
2. SUBSTANTIAL FACTOR
Scope of Risk: Foreseeability
- is this a reasonably foreseeable person?
- is this a reasonably foreseeable risk?
only the general type of harm needs to be foreseeable
Scope of Risk: Ease of Association
how easily can this injury be associated with the negligent act?
Owner Liability for Actions of Lessees/ Tenants
owner is liable in tort or the actions of its tenant where the owner:
- knows or reasonably should have known that the activity would cause damage
- the damage could have been prevented by reasonable care, and
- the landowner failed to exercise such reasonable care
Defamation: Types
- Defamation per se
- Susceptible of defamatory meaning
Intent
purpose or knowledge to a substantial certainty
subjective standard
Transferred Intent
- transfer between people
- transfer between torts
cannot transfer to or from IIED
Battery
- intent to contact
- actual contact
- contact is offensive or harmful
Contact
a touching of P’s person or contact with something closely connected to the person
Harm or Offense
to a person of reasonable sensibilities
Assault
- intent to create a reasonable apprehension of an imminent battery
- reasonable apprehension of imminent battery
- apparent means to complete the battery
reasonable apprehension of an imminent battery is not the same as _______
fear
False Imprisonment
- intent to confine
- actual confinement
Confinement
actual, complete confinement
- reasonable means of escape destroys confinement
IIED
- specific intent
- extreme and outrageous behavior – beyond toleration of reasonable members of society
- causation of severe emotional distress
- severe emotional distress
Prescription and IIED
does not begin until completion of last act
Trespass to Land
- intent to enter
- physical entrance onto property of another (can be entrance by object)
Knowledge in Trespass
irrelevant
Land
includes the area above and below the surface
Trespass to Chattel and Conversion
- intent to interfere with the dominion or with the use and enjoyment of the chattel of another
- substantial dominion or interference with the use and enjoyment
Choosing between trespass to chattel and conversion is only a matter of _________.
remedy
- trespass = get damages / fair rental value
- conversion = force sale and you get proceeds
Intentional Interference with Contractual Relationship
- K btw P and 3P
- D’s knowledge of the K
- D’s intentional interference with the K – induce/cause 3P to breach K or render performance impossible/burdensome
- causation of damages
Defamation
(false statement/ damage to one’s reputation)
- false and defamatory statement concerning another
- unprivileged publication to a 3P
- fault (negligence or greater) on behalf of the publisher
- causation of damages – injury
Defamation attaches to _______ not __________.
Defamation attaches to STATEMENTS not OPINIONS.
- statements can be proven/ opinions cannot
Publication in Defamation
requires statement be communicated to a 3P
Defense to Defamation
truth is an absolute defense
(if true, but nonetheless harmful, sue for Invasion of Privacy)
Constitutional Issues to Raise in Defamation
- statement relates to a PUBLIC OFFICIAL or a matter of PUBLIC CONCERN = actual malice is required
- Public Officials/Public Figures must prove ACTUAL MALICE (knowledge that statement is false or reckless disregard for its truth/falsity) by CLEAR & CONVINCING EVIDENCE
- Private Plaintiff/Public Matter requires proof of INJURY AND NEGLIGENCE by CLEAR AND CONVINCING EVIDENCE
Actual Malice
knowledge that the statement is false or reckless disregard regarding its truth or falsity
Absolute Privilege
- Judges,
- Witnesses,
- Attorneys,
- Legislators
(germaine to proceedings)
Qualified Privilege
- non-court statements
- peer review
- reporting crime
Invasion of Privacy: 4 Types
- intrusion upon seclusion
- appropriation of name or likeness
- publicity given to private life or facts
- false light
Intrusion of Seclusion
- intentional intrusion (physical or otherwise)
- upon seclusion (‘reasonable expectation of privacy’)
- that is highly offensive to a reasonable person
Appropriation of Name or Likeness
- appropriation by D
- to his benefit
- of P’s name/ likeness
- without consent
- actual damages
Public Disclosure of Private Facts
- publication to public
- about private facts
- that is highly offensive AND not of reasonable importance to the public (can be true)
False Light
- use of persons name/image
- attributes to him views he does not hold// actions he did not take
- affiliated with a group or cause you are not
- appearance of endorsement - impression is false in fact
Invasion of Privacy differs from defamation because truth is not a ________________ to ________________.
Invasion of Privacy differs from defamation because truth is not a DEFENSE to INVASION OF PRIVACY.
Many of the defenses apply to both Invasion of Privacy and Defamation.
In particular, because speech is involved, ________________ ________________ may be required by the U.S. Constitution.
Many of the defenses apply to both Invasion of Privacy and Defamation. In particular, because speech is involved, ACTUAL MALICE may be required by the U.S. Constitution.
Malicious Prosecution
- original criminal or civil proceeding
- with a P in the malicious prosecution as D in the original proceeding
- termination of the original proceeding in favor of the malicious prosecution P
- absence of probable cause for the original proceeding
- damages
Abuse of Process
- ulterior purpose
- willful act in the use of process that is improper
(Abuse of Process)
Malice is shown . . .
through ulterior purpose
Distinguishing Abuse of Process from Malicious Prosecution - Malicious Prosecution involves wrongfully initiating a legal ________________, while Abuse of Process involves wrongfully using ________________.
Distinguishing Abuse of Process from Malicious Prosecution - Malicious Prosecution involves wrongfully initiating a legal PROCEEDING, while Abuse of Process involves wrongfully using PROCEDURE.
Defenses to Intentional Torts
- self defense
- consent
- arrest and detention
- necessity
- defense of others
- defense of property and recapture of chattels
- deadly force / statutory immunity
SCAND-DD
Consent: validity and capacity
- NOT valid if obtained through fraud, duress or misrepresentation
- valid when given by mistake
Implied Consent
consent may be implied by facts and circumstances
can be withdrawn at any reasonable time
Self Defense: Reasonable Grounds
An actor may defend herself when she has reasonable grounds to believe that it is necessary.
Self Defense: Reasonable Force
An actor may only use reasonable force to defend himself.
excessive force exceeds the scope of the privilege.
Self Defense: Deadly Force
can only use deadly force when you are threatened with the same
Defense of Others: Relationship to Self Defense
One may defend others to the same extent that the third person may defend herself.
Defense of Others: Risk of Mistake
The risk of mistake is borne by the defender.
Arrest and Detention
- officers who are acting in accordance with the law
- store owners can detain up to 60 mins where they have reasonable belief of a theft
Defense of Property and Recapture of Chattels
- only belongs to possessor of the property
- reasonable force to protect
- when in hot pursuit, can use reasonable force to recapture
Deadly Force and the Statutory Immunity
seemingly creates statutory immunity to defend property using deadly force
Necessity
Necessity allows the defendant to TRESPASS where the action will result in a greater good, usually saving lives.
ONLY applies to intentional torts against property
But-For Test
but for the alleged negligent conduct, would injury have occurred?
CAN HAVE MORE THAN 1 BUT FOR CAUSES
Substantial Factor Test
was D’s negligence a substantial factor in causing P’s injury?
Multiple Causes of Negligence?
use substantial factor test
Evidentiary Standard for Negligence
= more probable than not
relax standard for multiple sufficient causes
Negligence: Requirements
LA applies the duty-risk analysis approach to negligence, which requires 5 elements:
(1) cause in fact
(2) duty
(3) scope of the risk
(4) breach
(5) injury
CDSBI (Christy Drives So Bad I’m suing for negligence)
Traditional Duty (methods of analysis)
- Reasonable Person
- Negligence Per Se
- Custom
- Res Ipsa
(go in that order IF they apply)
RNCR
Reasonable Person Standard
actor is expected to behave as a reasonable, ordinary, prudent person under like circumstances
- not average
- physical disabilities considered
- mental disabilities treated as a sane person
Reasonable Child Standard
expected to behave like a child of like age and development
also talk about parental responsibility
Negligence Per Se: When does it apply?
- look for statues/ ordinances/ regulations (these are NOT tort statutes)
- legislature has told us how a reasonable ordinary prudent person behaves
Negligence Per Se: Application of Statute
- ask the class of person and the class of risk to determine relevance
- statute will become mere EVIDENCE – NO PRESUMPTIVE EFFECT
Custom (general points)
- has to be established by some evidence
- sword/ shield
- safety standards
- professional negligence
Evidence for Custom
- safety manual
- practice
- safety standards
Role of Custom for Professional Negligence
customary standard of care = EXCLUSIVE method of determining reasonableness of conduct in professional negligence
Res Ipsa Loquitor
“the thing speaks for itself”
- event is of the kind that ordinarily does not occur absent negligence
- other responsible causes (including conduct of Ps and 3P) are sufficiently eliminated by the evidence
- indicted negligence is within the scope of the D’s duty to P
very strict – judge applies
Res Ipsa _______, but does not _______ an inference of negligence.
Res Ipsa allows, but does not mandate an inference of negligence.
Res Ipsa _________ apply in the presence of direct evidence.
Res Ipsa does not apply in the presence of direct evidence.
Scope of the Risk/Scope of the Duty
“Was this plaintiff’s injury within the scope of this defendant’s duty?”
Things to Analyze in Scope of Risk / Scope of Duty
- foreseeable risk / foreseeable P
- ease of association
- intervening and superseding causes
- PITRE policy factors
Scope of Risk: Intervening Cause
an event that occurs between defendant’s negligence and plaintiff’s injury
Scope of Risk: Superseding Cause
intervening cause that relieves the defendant of liability
factors:
- foreseeability (MORE fore = LESS super)
- culpability/ fault (MORE faulty = MORE super)
Scope of Risk: Pitre Policy Factors
(1) need for compensation of losses
(2) historical development of precedents
(3) moral aspects of D’s conduct
(4) efficient administration of law
(5) deterrence of future conduct
(6) capacity to bear/distribute losses
“New Hoes Means Everyone Does Coke”
Pitre Policy Factors Purpose
used to determine whether
a specific injury to a specific plaintiff
should be included in the scope of risk
Breach of Duty
occurs when the defendant’s conduct falls below the standard of reasonable care
= CREATES AN UNREASONABLE RISK OF HARM
objective standard
Hand Formula
B < LP = defendant has breached the standard of care, and has thus created an unreasonable risk of harm
B: burden of the precaution
L: loss
P: probability of the loss
How to Determine Breach
use a utility-risk analysis, otherwise known as the Hand formula
Injury
plaintiff must have suffered a compensable injury to their person or property
includes lost chance of survival in med mal cases
includes emotional distress (alongside physical injury) and fear of disease
Controlling 3P Possible Players
- caretakers
- parents
- 3P criminal activity
duty = reasonable person standard
Parents/ Child in Fact Pattern . . .
- is the child negligent?
- parental negligent supervision?
- parental responsibility for acts of children under 2318