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1 - Torts > Full Set > Flashcards

Full Set Flashcards

1
Q

intentional tort

A
  1. voluntary act
  2. intent
  3. causation!
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2
Q

transferred intent

A

intention to commit an intentional tort against one person but instead commits:

  1. different tort against the same person
  2. same intended tort against a different person
  3. OR different intentional tort against a different person

(battery, assault, false imprisonment, trespass to land/chattel)

DOES NOT apply to IIED.

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3
Q

BATTERY DEFINITION

A
  1. Δ causes
  2. harmful or offensive contact with another
  3. & intends to cause that contact OR apprehension of it.
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4
Q

assault

A
  1. Δ intends
  2. to cause Π to have
  3. reasonable apprehension of imminent harmful/offensive bodily contact.
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5
Q

iied

A
  1. intentionally/recklessly
  2. acting extremely/outrageously
  3. causing Π’s emotional distress.
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6
Q

false imprisonment

A
  1. intending to and
  2. having effect of confining/retraining an
  3. aware or harmed Π
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7
Q

negligence elements

A
  1. duty
  2. breach
  3. causation
  4. harm

reasonable person standard.

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8
Q

firefighter’s rule

A

certain emergency personnel may be barred from recovery.

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9
Q

assumption of duty

A

voluntarily starts, placing in danger, authority, relationship.

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10
Q

bailment

A

bailee temporarily takes possession of another’s (the bailor’s) property.

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11
Q

TRESPASS TO LAND

A
  1. Δ intentionally
  2. causes
  3. physical invasion of land.
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12
Q

TRESPASS TO CHATTEL

A
  1. intentional

2. dispossession, use or meddling with owner’s use.

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13
Q

Private nuisance (elements)

A
  1. substantially & unreasonably
  2. interferes with use and enjoyment
  3. un/intentional

spite fence exception

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14
Q

Private nuisance defenses

A
  • assumption of risk
  • compliance w/ regulation isn’t
  • coming to the nuisance
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15
Q

public nuisance (elements)

A
  1. unreasonable interference w/
  2. right in common to general public
  3. special harm to individual
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16
Q

nuisance remedies

A

injunction (abatement), damages

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17
Q

Tort Damages

A

BATTERY – harm did not have to be foreseeable, no proof of harm = nominal damages, some states punitive if w/ malis.

ASSAULT – no proof of actual damages require, nominal available, & damages from physical harm due to apprehension.

IIED – injury not required.

FALSE IMPRISONMENT –

TRESPASS TO LAND – no proof of actual damages required.

TRESPASS TO CHATTEL – actual damages for dispossession and use/intermeddling (also for dimunition in value).

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18
Q

Tort Defenses

A

CONSENT – implied or express (must have capacity).

SELF-DEFENSE – force must be reasonably proportional, usu. no duty to retreat, unavailable to initial aggressor.

DEFENSE OF OTHERS – reasonable person standard for force.

DEFENSE OF PROPERTY – reasonable force, never deadly, no force for real property

PARENTAL DISCIPLINE –

PRIVILEGE OF ARREST – private citizen if felony actually committed & civilian is reasonable to suspect; police reasonably believe felony occurred and that arrestee committed it.

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19
Q

Res Ipsa Loquitor

A
  • Accident wouldn’t usu. occur but for negligence.
  • Caused by agent/instrumentality w/in Δ’s exclusive control.
  • Not to due Π’s fault.
  • (Extended in cases of medical malpractice – joint & several liability.)
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20
Q

AFFIRMATIVE duty

A

when assumed (once started can’t stop), creates dangerous situation, authority, special relationship.

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21
Q

EXCUSED duty

A

physical characteristics (blindness), involuntary intoxication, CBA, custom, physicians.

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22
Q

PER SE duty

A

law imposes duty, statute’s SoC, plaintiff must be named in statute. W/ impossibility or compliance being more dangerous as exceptions.

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23
Q

SPECIAL SITUATIONS duty

A 
o	HIGHER – Common carriers 
o	ORDINARY – innkeepers 
o	RECKLESS – automobile guest statutes
o	NEGLIGENCE – automobile drivers to guests
o	CONTEXT DEPENDENT – bailment
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24
Q

LAND POSSESSORS duty

A

reasonable care.
o 50% jurisdictions have a gradation system & 50%
o TRESPASSERS – can’t be willful/wanton, no duty to undiscovered trespassers & may follow “attractive nuisance” doctrine for children (artificial condition where know/reason to know: children may trespass • risk of death/harm • b/c age can’t discover/appreciate danger • CBA • fails to exercise reasonable care).
o LICENSEES – no duty to correct or warn; reasonable care.
o INVITEES – reasonable care, non-delegable duty (can’t contract to independent person) – Licensees=Invitees now.
o L & T – L common areas; Ts must fix what they break.
o OFF-PREMISES VICTIMS – NL for natural conditions exception trees in urban areas; reasonable care
o SELLERS OF REAL PROPERTY – duty to disclose to buyers concealed & unreasonably dangerous conditions.

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25
Q

CAUSE IN FACT (N causation)

A

• Causal link is insufficient – “but for test.”
• Multiple tortfeasors – JSL (either L for all damages).
o Alternative causation – when it could have been either wholly, burden shifts to defendants.
o Lost chance of survival – collect against Dr.

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26
Q

PROXIMATE CAUSE (N causation)

A
  • 3rd RESTATEMENT - “Is this the kind of harm that made us decide that you are negligent?”
  • PALSGRAF – continuous, substantial factor, no intervening causes, likely to cause effect, foreseen harm, too remote in time?
  • Some courts combine CiF & PC.
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27
Q

N DAMAGES Special cases

A
  • Collateral source rule – payments from outside sources formerly were not be credited against L of tortfeasor, but willfulness.
  • NIED – can’t recover unless zone of danger or bystander if close relation, or misdiagnosis, or mishandling of corpse, can be parasitic to other tort.
  • WRONGFUL DEATH – loss of support/income, companionship.
  • Family member injury – spouse & children.
  • Wrongful life – most states say no, some allow wrongful birth.
28
Q

VICARIOUS LIABILITY

A
  • Employment – direct negligence action or respondeat superior (detour vs frolic).
  • Independent contractor – terms of agreement, if employer retains a right of control over the way work is done, inherently dangerous, nondelegable, duty to keep premises safe, or duty to comply with statutes.
  • Business partners – maybe.
  • Negligently entrusting – vehicle, gun or dangerous device.
  • Parents – NL unless child is agent or parent is N with regard to own child.
29
Q

IMMUNITIES

A
  • Most have been eliminated.
  • Fed waives immunity in tort except a long list of things.
  • Most states have also waived to a certain degree.
  • Fed employee are NL under state court law.
  • Spouses & parents.
  • Charities – most states have eliminated, some have capped damages.
30
Q

MULTIPLE ΔS SHARE L

A
  • Accident wouldn’t usu. occur but for negligence.

* Caused by agent/instrumentality w/in Δ’s exclusive

31
Q

CONTRIBUTORY NEGLIGENCE Defense

A

• TRADITIONAL RULE – if Δ could have avoided the accident & didn’t → L. (Most states have done away with it.)
• LAST CLEAR CHANCE DOCTRINE – if Δ had the last clear chance to avoid harm & didn’t, then Π could still recover.
o Helpless Π – peril due to Π’s contrib. N, but can’t escape → Δ L if, knew/should have known & could have avoided.
o Inattentive Π – peril due to Π’s contrib. N, but can’t escape → Δ L if, actual knowledge & could have avoided.

32
Q

COMPARATIVE NEGLIGENCE defense

A
  • Damages based on relative fault.
  • PURE COMPARATIVE – Π’s N is never a complete bar, just reduced to the extent Π contributed.
  • MODIFIED COMPARATIVE – majority, if Π Δ → 0, = → 50%.
  • MULTIPLE ΔS – Π’s N is compared to N of all Δs combined.
  • IMPUTED CONTRIBUTORY – disfavored. Limit 1 person’s recovery b/c another person’s N. An employee’s negligent driving may prevent or reduce an employer’s recovery from a third party if the employer’s car is damaged.
33
Q

ASSUMPTION OF RISK – APPLIES TO NEGLIGENCE DEFENSE (CONSENT APPLIES TO INTENTIONAL TORTS)

A
  • Knowingly & willingly.
  • Exculpatory clauses may not enforced if: (1) disclaim reckless/wanton/gross; (2) bargaining power; (3) cc, innk & employers.
  • Applies to attendees at sporting events.
34
Q

STRICT LIABILITY ACTIVITIES

A

(1) abnormally dangerous activities, (2) wild animals, (3) defective products.

35
Q

SL - ABNORMALLY DANGEROUS ACTIVITIES

A 
•	Factors vary by activity:
o	Foreseeable & highly significant risk of physical harm even with reasonable care.
o	Gravity of harm.
o	Activity common?
o	Value to community.
o	Appropriate to location.
•	Scope of risk – only SL for harm that flows from the thing that made the activity abnormally dangerous.
•	Airplanes no longer SL, just N law.
36
Q

SL - ANIMALS

A
  • Dogs – “dog bite” statutes, majority only L if Nor had reason to know.
  • Wild – species or class is not by custom devoted to the service of mankind in the place where he is being kept.
  • L for damage from trespass.
  • Π’s conduct in contributory → recovery. Π’s conduct in comparative → may limit. Taunting may convey assumption of risk.
37
Q

SL - DEFENSES

A
  • Comparative N Jur it could be reduced (minority).
  • Assumption of risk is a complete bar in any SL case.
  • Statutory privilege – performing essential public service, could still be L for N.
38
Q

PRODUCTS LIABILITY CLAIMS

A

Negligence, SL, Warranty

39
Q

PRODUCTS LIABILITY - NEGLIGENCE

A
  • Trend is to discourage N claims in favor of warrant claims with duty, breach, causation & damages.
  • Must show that a particular Δ was N, not just defective product.
40
Q

PRODUCTS LIABILITY - WARRANTY

A
  • Express – affirmative guarantee.
  • Implied – read into product: merchantability & fitness.
  • Contract – if the product turns out to be more dangerous than Π thought.
  • Disclaimers – generally can disclaim warranties, but not merchantability as it apples to personal injury.
41
Q

PRODUCTS LIABILITY - S PRODUCTS L DEFENSES

A

o Comparative fault jurisdictions it can be reduced.
o Product misuse or modification (comp – preclude; contrib – doesn’t eliminate), substantial change = superceding.
o Contributory not a defense, when Π is N in failing to discover defect.
o Assumption of risk is complete bar.
o Compliance with gov’t standards is not conclusive.
o State of the art is not complete, but is relevant.

42
Q

PRODUCTS LIABILITY - S PRODUCTS L ELEMENTS

A

(1) defective product, (2) existed @ time left Δ’s control, (3) caused injury.

43
Q

PRODUCTS LIABILITY - S PRODUCTS L DAMAGES

A

Π recovers for personal injury & property damage. Economic loss claims can win SL, but must be thru warranty claims.

44
Q

PRODUCTS LIABILITY - S PRODUCTS L PARTY CHARACTERISTICS

A
  • Manufacturer, distributor, or seller a product that is defective can be L.
  • Π doesn’t have to be in privity with Δ, just anyone foreseeably injured.
45
Q

DEFAMATION ELEMENTS

A
  1. DEFAMATORY STATEMENT
  2. CONCERNING Π
  3. PUBLISHED TO 3RD PARTY WHO UNDERSTANDS DEFAMATORY LANGUAGE
  4. DAMAGE TO REPUTATION
46
Q

DEFAMATION DEFAMTORY STATEMENT (DEFINITION)

A

Diminishes respect, esteem, or goodwill towards Π or deters others from associating with Π.

MUST be FALSE, opinions only actionable if implication that there are facts to back up opinion.

LIBEL – (1) written/recorded, (2) only general damages needed compensating for rep harm, (3) libelous on face.

SLANDER – (1) word or gesture, (2) special damages OR slander per se:
•	Crime of moral turpitude.
•	Unfit for trade or business.
•	Loathsome disease.
•	Severe sexual misconduct.
47
Q

DEFAMATION CONCERNING Π (DEFINITION)

A

Reasonable person standard, if referring to a group can only bring a claim if group so small its clear who is targeted.

48
Q

DEFAMATION Complications

A

Matters of public concern Δ must have been negligent+ & malice necessary for public figure/official.

Public figures/officials must PROVE falsity, rather than just have truth on their side.

49
Q

DEFAMATION DEFENSES

A

Truth – absolute.

Consent – absolute.

Privileges
o Absolute – judicial proceedings, legislative proceedings, btw spouses, & required publications by radio or TV.
o Conditional – good faith pursuant to some duty (1) in the interest of Δ to protect rep, (2) interest of recipient of the statement, OR (3) affecting important public interest.

50
Q

DEFAMATION DAMAGES

A

PUBLIC OFFICIAL/FIGURE – only actual damages.

PRIVATE INDIVIDUAL W/ MATTER OF PUBLIC CONCERN – only actual damages.

PRIVATE INDIVIDUAL & NOT MATTER OF PBULIC CONCERN – general damages, including presumed damages w/o having to prove actual malice.

51
Q

PRIVACY TORT DEFENSES

A

FALSE LIGHT & PUBLIC DISCLOSURE (same as absolute/conditional privileges) :
• judicial proceedings
• legislative proceedings
• btw spouses
• required publications by radio or TV
• good faith pursuant to some duty (1) in the interest of Δ to protect rep, (2) interest of recipient of the statement, OR (3) affecting important public interest.

Mistake to consent.

52
Q

PRIVACY TORT - PUBLIC DISCLOSURE OF PRIVATE FACTS

A

Matter is highly offensive to a reasonable person & not of legitimate concern to public (courts determine this is broad).

53
Q

PRIVACY TORT - FALSE LIGHT

A

stringing ½ truths to convey false impression.

54
Q

PRIVACY TORT - UNREASONABLE INTRUSION UPON SECLUSION OF THE Π’S PRIVATE AFFAIRS

A

objectionable to reasonable person.

55
Q

PRIVACY TORT - MISAPPROPRIATION TO RIGHT OF PUBLICITY

A

Π has right to name/likeness.

56
Q

INTENTIONAL MISREPRESENTATION (Elements)

A
  1. False – material, deceptive (generally no duty to disclose unless fiduciary relationship).
  2. Scienter – knowledge or reckless disQregard.
  3. Intent – intended to cause Π to act in reliance.
  4. Causation – actual reliance necessary.
  5. Justifiable reliance – gullible Π probably wont recover.
57
Q

INTENTIONAL MISREPRESENTATION (Damages)

A

Π must prove actual, economic, or pecuniary loss. No nominal!

58
Q

NEGLIGENT MISREPRESENTATION (Elements)

A
  1. Δ provided false info b/c negligent.
  2. Possible L for pecuniary b/c justifiable reliance.
  3. Contractual relationship OR Π is 3rd party known by Δ to be a member of the limited group for whose benefit the info was supplied.
  4. Intent.
  5. Justifiable reliance.
59
Q

NEGLIGENT MISREPRESENTATION (defenses)

A

N defenses can’t be raised.

60
Q

NEGLIGENT MISREPRESENTATION (damages)

A

out of pocket & consequential damages.

61
Q

INTENTIONAL MISREPRESENTATION (damages)

A

Π must prove actual, economic, or pecuniary loss. No nominal!

62
Q

MALICIOUS PROSECUTION (WRONGFUL USE OF THE LEGAL SYSTEM)

A

civil context; action must be dismissed in favor of person bringing wrongful use suit.

63
Q

ABUSE OF POWER (WRONGFUL USE OF THE LEGAL SYSTEM)

A

ulterior motive, e.g., school board suing teacher’s union to keep them from picketing.

64
Q

TRADE LIBEL (misrepresentation INJURIOUS FALSEHOODS)

A
  1. derogatory statement
  2. related to Π’s business or products
  3. special damages to bus relationships.
65
Q

SLANDER OF TITLE (misrepresentation INJURIOUS FALSEHOODS)

A
  1. publication of
  2. false
  3. derogatory statement about
  4. title
  5. with malice &
  6. causing damages
  7. diminishing value in the eyes of 3rd parties.
66
Q

INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS

A
  1. Δ knew of contractual relationship btw Π & 3rd party.
  2. Δ intentionally interfered resulting inducement
  3. Breach caused damages or adds additional burden.
  4. Valid contract.
  5. Exceeds fair competition.
  6. Defense – can be justified for public health/safety reasons.
67
Q

MISAPPROPRIATION OF TRADE SECRETS

A
  1. Π holds not generally known & took precaution

2. Δ taking by secret/improper means.

1 - Torts (2 decks)

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