BAR: TORTS Flashcards
Transferred Intent
The intent to commit a certain tort against one person is “transferred” to the tort automatically committed or to the person actually injured for purposes of establishing a prima facie case.
Applies when D intends to commit a tort against one person but instead:
- commits a different tort against the person;
- commits intended tort but against a different person; OR
- commits a different tort against a different person
Note: only applies to assault, battery, false imprisonment, trespass to land, and trespass to chattels.
Assault
Assault
(1) D intentionally
(2) Places P in reasonable apprehension
(3) Of an immediate or offensive touching
(4) With P’s person.
Battery
Battery
(1) D intentionally
(2) Commits a harmful or offensive contact
(3) With P’s person
False Imprisionment
False Imprisonment
(1) D intentionally act
(2) Causing P to be confined to a bounded area with no reasonable means of escape
(3) Where P is aware of OR is harmed by the confinement.
Intentional Infliction of Emotional Distress (IIED)
IIED
(1) An intentional or reckless act by D
(2) Amounting to extreme and outrageous conduct
(3) Causing severe Emotional Distress
Extreme or Outrageous conduct: Conduct that transcends all bounds of decency, if not normally outrageous can become so if:
(i) continuous in nature
(ii) Directed toward a certain P (child, super sensitive if known to D, elderly, pregnant)
(iii) Committed by a certain D (common carrier, innkeeper).
Bystander IIED
If D intentionally causes physical harm to a 3rd party and Plaintiff who is outside the zone of danger suffers severe emotional distress she may recover by showing prima facie elements of IIED or
(i) She was present when the injury occurred
(ii) She is a close relative of the 3rd Party, and
(iii) D knew she was present and she was a close relative
***if P is not a close relative, she needs to show physical harm
Intentional Trespass to Land
Intentional Trespass to Land
(1) D commits an act of physical invasion
(2) On P’s land
(3) D must have an intent to be on P’s land (not an intent to trespass)
Negligent Trespass to Land
Negligent Trespass to Land
(1) D commits an act of physical invasion (due to D’s negligence, recklessness, abnormally dangerous activity)
(2) On P’s land
(3) causing damage to P’s land.
Trespass to Chattels
Trespass to Chattels
(1) D must intentionally commit
(2) An act of interference where the degree of interference is minor
(3) With P’s tangible personal property
Recovery: P can recover cost of repair
Conversion
Conversion
(1) D must intentionally commit
(2) An interference where the degree of interference is major
(3) With P’s tangible personal property
Recovery: P can recover full market value at the time of conversion
Defenses to Intentional Torts: Consent
P may expressly or impliedly consent to D’s conduct but D must stay within the scope of P’s consent
Express Consent - D is not liable if P expressly consents to D’s conduct
Implied Consent - Consent which a reasonable person would infer from custom, usage, or P’s conduct
Consent Implied by Law - Arises when action is necessary to save a person’s life or some other important interest in personal property
Defenses to Intentional Torts: Self Defense
D may raise the absolute defense of self defense if:
(1) D possessed a reasonable belief
- A reasonable belief exists when there is apparent necessity not actual necessity. a reasonable mistake is okay.
(2) She was being or was about to be harmed, and
-There must be immediate danger
(3) Such force was reasonably necessary to protect herself.
Modern Trend: D is under a duty to retreat if: (i) she can do so safely, and (ii) there is a reasonable means of escape, UNLESS she is in her home or non-deadly force is being used.
Initial Aggressor: An initial aggressor can’t raise self-defense unless she retreats and announces her retreat or the victim escalates with deadly force
Defenses to Intentional Torts: Defense of Others
Defense of Others
(1) Possessed as a reasonable belief
- a reasonable belief exists when there is apparent necessity not actual necessity. A reasonable mistake is okay
(2) That another was being or was about to be harmed, and
-There must be immediate danger
(3) Such force was reasonably necessary to protect that other person
Defenses to Intentional Torts: Defense of Property
D may use reasonable force to prevent the commission of a tort against her real or personal property so long as it is not deadly force.
Recapture
The recapture of chattel must be made peacefully. Force may only be used when in hot pursuit:
(1) D must make a request to desist or leave, unless this would be futile or dangerous.
(2) D may enter a wrong doers land to recover chattel if re-taken within a reasonable time and in a reasonable manner.
Defenses to Intentional Torts: Shopkeeper’s Privilege
Defense to false imprisonment claims ONLY.
Shopkeeper must have the following (GIFT):
(1) Have reasonable grounds,
(2) Must conduct a reasonable investigation
(3) Must use reasonable force, and
(4) Detention must be for a reasonable time
Defenses to Intentional Torts: Defense of Necessity - Public Necessity
Defense to tort claims ONLY: trespass to land, conversion, trespass to chattels
Public Necessity:
(1) D invades P’s property
(2) in an emergency
(3) to protect the community as a whole or a significant group of people
*Absolute privilege: no liability for trespass or damage.
Defenses to Intentional Torts: Defense of Necessity - Private Necessity
Defense to tort claims ONLY: trespass to land, conversion, trespass to chattels
Private Necessity:
(1) D invades P’s property
(2) in an emergency
(3) to protect an interest of his own (i.e. personal/property safety or security).
*Qualified Privilege: No liability for trespass but liable for damage.
Defenses to Intentional Torts: Defense of Necessity - Continuing emergencies
For continuing emergencies, D has a right to remain on P’s property in a position of safety; P can’t eject D off the land; if P ejects D off the land, P is liable for damages to D’s property and D’s personal injuries.
Defenses to Intentional Torts: Capacity
Everyone is “capable” of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.
Defenses to Intentional Torts: Discipline
A teacher or parent may use reasonable force to discipline a child.
Defenses to Intentional Torts: Privilege of Arrest
(cluster with shopkeeper’s privilege if false imprisonment claim ONLY)
If D makes an arrest of P, D has the privilege to make the arrest if:
(i) Misdemeanor Arrest: P was breaching the peace and this happened in front of D
(ii) Felony Arrest by Police: (1) D reasonably believed a felony had been committed (2) D reasonably believed P was the one who did it, and (3) reasonable force was used.
(iii) Felony arrest by non-police: (1) Felony must have been committed, (2) D reasonably believed P committed it, and (3) reasonable force was used.
Negligence Order of Analysis
Duty
Standard of Care
Breach
Causation
Damages
NIED
Negligence Defenses
Negligence
P must make a prima facie case for negligence, by a preponderance of the evidence, that D has a duty to behave according to the appropriate standard of care, D breached that duty, causation, and damages.
Standard of Evidence: Preponderance of the evidence, more likely than not; great than 50%
Duty
All people have a duty to prevent an unreasonable risk of harm to others.
Cardozo view- all foreseeable plaintiffs within the zone of danger are owed a duty
Andrews view - D owes a duty to all
If there is a preexisting relationship between P and D there is a duty to act as a reasonably prudent X (whatever that person is) to the P (i.e. common carrier, employer, employee)
Ad hoc relationships may create a duty (e.g. spouses/frieds)
Duty: failure to act
Failing to act and omission is breach
If there is a preexisting relationship between P and D, there is a duty to act as a rewasonbly prudent X (whatever the person is) to the P (i.e. common carrier, employer, employee).
Ad hoc relationships may create a duty (spouses, friends)
Duty to rescue
There’s a duty to rescue when D caused the peril. The standard of care is to rescue reasonably under the circumstances. D doesn’t have to put his own life in peril.
Standard of Care
People are required to act as a reasonably prudent person would act in the same or similar circumstances which is judged objectively. In certain circumstances, an individual has a duty to act according to a higher standard of care.
Standard of Care: Default Standard
The default standard of care D owes is of a reasonably prudent person acting under similar circumstances.
Duty to prevent third person from injuring another
There is no duty to prevent a 3P from injuring another UNLESS one has the actual ability and authority to control the 3P’S actions and knows or should know that the 3P is likely to commit acts that require his control.
Standard of Care: Superior Knowledge
If D has superior knowledge about a matter relevant to the case then D is held to the higher standard of a reasonably prudent person with that superior knowledge.
Standard of Care: Different Physical Characteristics
A D with different physical characteristics as an average person held to that standard of care that a reasonably prudent person with that physical characteristic would exercise.
Standard of Care: Statutory Standard of Care (Negligence Per Se)
Negligence Per Se
P may request the court to establish duty and breach through a statute. It would be applicable so long as:
(1) The statute clearly defines the standard of conduct
(2) P was in the class of persons the statute was designed to protect, and
(3) The statute was designed to protect the type of harm suffered.
Standard of Care: Child Standard of Care
A D-child is held to that standard of care that a reasonably prudent child of similar age, experience and intelligence acting under similar circumstances would exercise.
Exception: if a child is engaged in adult activity, D-child owes a duty to act as a reasonably prudent person acting under similar circumstances.
Standard of Care: Professional Standard of Care
D owes that standard of care that the average member of that profession engaged in similar services would give to P.
Lawyers/Doctors/Specialists: compared to national standard
Doctors have a duty to reasonably inform patient of any risks.
Landowner’s Standard of Care: Trespasser
A landowner owes no duty to a trespasser who is an unforeseeable victim
Landowner’s Standard of Care: Discovered or Anticipated Trespasser
A landowner has a duty to warn known trespassers about known, concealed, artificial, death traps.
Landowner’s Standard of Care: Attractive Nuisance
Attractive Nuisance
(1) D must know of trespassers
(2) D must know trespassers won’t/can’t appreciate the danger
(3) D must be capable of eliminating the harm, and
(4) the cost is outweighed by the benefit
Landowner’s Standard of Care: Licensee
Licensee (social guest)
A licensee has the landowner’s permission to enter but does not confer any economic benefit on the landowner.
A landowner has a duty to warn, but not a duty to repair or inspect, a licensee of all concealed, known, artificial and natural dangers that create an unreasonable risk of harm that the licensee is not likely to discover.
Landowner’s Standard of Care: Invitees
Invitees (business guest)
An invitee has the landowner’s permission to enter and confers an economic benefit
A landowner has a duty to inspect, repair, and warn an invitee of artificial and natural dangerous conditions that the invitee is not likely to discover.
Landowner’s Standard of Care: Recreational land users
A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, UNLESS, the landowner willfully and maliciously failed to guard against or warn of dangerous condition or activity.
Landowner’s Standard of Care: Lessee
A lessee has a general duty to maintain the premises
Landowner’s Standard of Care: Lessor
A lessor has a duty to warn of reasonably known existing defects that the lessee is not likely to discover upon reasonable inspection
If a lessor promises to repair - he is liable for unreasonably dangerous conditions
If a lessor volunteers to repair and does so negligently, he is liable.
Breach
A breach occurs when D falls below the standard of care he owes. As noted, here the standard of care is one of (reasonable or heightened care)
Res ipsa loquitor
“the thing speaks for itself”
An inference of negligence may arise when P shows that:
(1) The accident that occurred is normally associated with negligence
(2) The accident or injury is normally due to the negligence of someone in D’s position because D had control over the instrumentality that caused the harm, and
(3) P must rule out his own action as the cause of his harm
Causation
Plaintiff must establish both actual and proximate causation
Actual Cause
But for D’s act or omission to act, P would not have been injured.
Substantial Factor Test: a breach is a substantial factor if it would have been able to cause the injury by itself.
- Merged Causes: two negligent Ds each breach seperately and breaches combine to cause harm.
- Unascertainable cause: one breach caused the harm but its unclear who caused the breach. Each D has a certain percentage of chance that one of them caused the breach. Each D has the burden of proof to show he did not cause the harm.
Proximate Causation
Plaintiff must show D’s breach created a foreseeable risk of harm and P’s injuries fall within the scope of the foreseeable harm.
Eggshell Skull Plaintiff
P is entitled to recover all the damage he suffers even if surprisingly great in scope (i.e. D must take his P as he finds his P).
Direct Cause
If there is an uninterrupted chain of events from the negligent act to P’s injury, D is liable for all resulting foreseeable harm regardless of the unusual manner in which they arose.
Intervening Event
A new force joins Ds action to cause P’s injury. D is not liable if the intervening force was foreseeable. If D’s negligence did not cause increased risk of the intervening force, the intervening force is superseding.
