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Intentional Torts Flashcards

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1
Q

Transferred Intent

A

The intent to commit a certain tort against one person is “transferred” to the tort actually commited or to the person actually injured for purposes of establishing a prima facie case.

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1
Q

When does transferred intent apply? Add this subrule

A

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

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2
Q

Which torts does transferred intent work on?

A

assault, battery, false imprisonment, trespass to land and trespass to chattels

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3
Q

Assault

A

(1) D intentionally, (2) places P in reasonable apprehension (3) of an immediate or offensive touching (4) with P’s person

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4
Q

False Imprisonment

A

(1) D intentionally acts or omits to 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

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5
Q

Battery

A

(1) D intentionally (2) commits a harmful or offensive contact (3) with Ps person

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6
Q

IIED

A

(1) an intentional or reckless act by D (2) amounting to extreme and outrageous conduct (3) causing severe emotional distress to P

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7
Q

Subrule for (2) Extreme and outrageous conduct

A

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)

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8
Q

Bystander cases

A

If D intentionally causes physical harm to 3P and P, 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 3P, 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

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9
Q

Intentional Trespass to Land

A

(1) D commits an act of physical invasion (2) on P’s land (3) D must have an intent to be on Ps land (not an intent to trespass)

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10
Q

Negligent Trespass to Land

A

(1) D commits an act of physical invasion (due to D’s negligence, recklessness, abnormaly dangerous activity) (2) on Ps land (3) causing damage to Ps Land

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11
Q

Trespass to Chattels

A

(1) D must intentionally commit (2) an act of interference where the degree of interference is minor (3) with Ps tangible personal property
*Recovery: P can recover cost of repair

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12
Q

Conversion

A

(1) D must intentionally commit (2) an act of interference where the degree of interference is major (3) with Ps tangible personal property
*Recovery: P can recover full market value at time of conversion

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13
Q

Defenses to Intentional Torts

A

Consent, self-defense, defense of others, defense of property, shopkeeper’s privilege, defense of necessity, capacity, discipline, privilege of arrest

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14
Q

Consent

A

P may expressly or impliedly consent to Ds conduct but D must stay within the scope of Ps consent
*Express Consent: D is not liable if P expressly consents to Ds conduct
*Implied Consent: Consent which a reasonable person would infer from custom, usage or Ps conduct
*Consent implied by law: arises when action is necessary to save a persons life or some other important interest in property

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15
Q

Self-defense

A

D may raise absolute defense of self-defense if: (1) D possessed a reasonable belief - a RB exists when there is apparent necessity not actual necessity. A reasonable mistake is okay. (2) she was or was about to be harmed - there must be immediate danger , and (3) such force was reasonably necessary to protect herself.

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16
Q

Self-defense modern trend

A

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.

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17
Q

Self-defense initial aggressor

A

An initial aggressor can’t raise self-defense unless she retreatse and announces her retreat or the victim escalates with deadly force.

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18
Q

Defense of Others

A

(1) D possessed a reasonable belief - RB exists when there is apparent necessity not actual necessity. (2) that another was being or was about to be harmed (immediate danger), and (3) such force was reasonably necessary to protect that other person

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19
Q

Defense of Property

A

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.

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20
Q

Defense of Property - Recapture of Chattel

A

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 wrongdoer’s land to recover chattel if re-taken within a reasonable time and in a reasonable manner

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21
Q

Shopkeeper’s Privilege

A

Defense to false imprisonment 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

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22
Q

Defense of Necessity

A

Defense to property tort claims ONLY; trespass to land, conversion, trespass to chattels

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23
Q

Defense of Necessity - Public Necessity

A

(1) D invades Ps property, (2) in an emergency, (3) to protect the community as a whole or a significant group of people/. This is an absolute privilege no liability for trespass or damage

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24
Q

Defense of Necessity - Private Necessity

A

(1) D invades Ps property, (2) in an emergency, (3) to protect an interest of his own (ie personal/property safety or security). This is a qualified privilege meaning no liability for trespass, but liable for damages.

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25
Q

Defense - Capacity

A

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.

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26
Q

Defense - Discipline

A

A teacher or parent may use reasonable force to discipline a child.

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27
Q

Defense - Privilege of Arrest

A

*cluster with shopkeeper’s
If D makes an arrest of P, D has the privilege to make the arrest if either: (1) misdemeanor arrest - P was breaching the peace and this happened in front of D, (2) felony arrest by police: (1) D reasonably believed a felony had been committed and (2) D reasonably believed P was the one who did it, and (3) reasonable force was used, and Felony arrrest by non-police: (1) felony must have been committed, and (2) D reasonably believed P committed it, and (3) reasonabel force was used

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28
Q

Negligence

A

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.

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29
Q

Duty

A

All people have a duty to prevent an unreasonable risk of harm to others. Under the Cardozo view, all foreseeable plaintiffs within the zone of danger are owed a duty. Under the Andrews view, D owed a duty to al.

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30
Q

Duty Cont.

A

Failure to act (omission is a breach), if pre-existing relationship between P & D, there is a duty to act as a reasonably prudent X (whatever that person is) to the P, (3) there’s a duty to rescue when D caused the peril, (4) no duty to prevent a 3P from injuring another UNLESS one has the actual ability and authority to control the 3Ps actions and knows or should know that the 3P is likely to commit acts that require his control

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31
Q

Duty - Standard of care

A

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.

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32
Q

Superior knowledge standard of care

A

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.

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33
Q

Different physical characteristics standard of care

A

A D with different physical characteristics as an average person is held to that standard of care that a RP with that physical characteristic would exercise.

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34
Q

Child standard of care

A

a D child is held to that standard of care that a reasonably prudent person of similar age, experience and intelligence acting under similar circumstances would exercise.
*Exception: If a child is engaged in an adult activity, D-child owes a duty to act as a reasonably prudent person acting under similar circumstances.

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35
Q

Professional Standard of Care

A

D owes that standard of care that the average member of that profession engaged in similar circumstances would give to P.
**lawyers/doctors/specialists: compared to national standard
*doctor: duty to reasonably inform patient of any risks

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36
Q

Landowner standard of care

A

Trespasser, known trespasser, licensee, inviteesm recreational land users, lessor/lessee

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37
Q

Trespasser

A

a landowner owes no duty to a trespasser who is an unforeseeable victim

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38
Q

Known trespasser

A

A landowner has a duty to warn known trespassers about known, concealed, artificial, death traps

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39
Q

Known trespasser and attractive nuisance

A

(1) D must know of trespassers, (2) D must know trespassers wont/cant appreciate the danger, (3) D must be capable of eliminating the harm, and (4) the cost is outweighed by the benefit

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40
Q

Licensee (social guest)

A

licensee has landowner’s permission to enter but does not confer any economic benefit on 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 dangerous conditions that the invitee is not likely to discover

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41
Q

Recreational Land Users

A

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 a dangerous condition or activity.

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42
Q

Invitees

A

An invitee has the landowners permission to enter and confers an economic benefit. 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.

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43
Q

Lessor/Lessee

A

A lessee has a general duty to maintain the premises.
A lessor has a duty to warn of reasonably known existing defects that the lessee is not likely to discover upon reasonable inspection. If lessor promises to repair, eh is liable for unreasonably dangerous conditions. If he volunteers to repair and does so negligently, he is liable.

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44
Q

Breach

A

A breach occurs when D falls below the standard of care he owes.

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45
Q

Things to put under breach

A

negligence per se, res ipsa, failure to act

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46
Q

Negligence per se

A

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

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47
Q

Res Ipsa Loquitor

A

“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 Ds 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

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48
Q

Failure to Act

A

Omission is a breach
*if there is a preexisting relationship between P & D, there is a duty to act as a reasonably prudent X (whatever that person is) to the P (ie common carrier, employer, employee)
*there’s a duty to rescue when D caused the peril. Standard of care is to rescue reasonably under the circumstances. D doesn’t have to put his own life in peril.
* there is no duty to prevent a 3P from injuring another UNLESS one has the actual ability and authority to control the 3Ps actions and knows or should know that the 3P is likely to commit acts that require the control

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49
Q

Causation

A

P must establish both actual and proximate causation

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50
Q

Actual cause

A

But for Ds act or omission, 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 separately and breaches combine to cause harm

*Unascertainable cause: One breach caused the harm but it is 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.

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51
Q

Proximate Cause

A

P must show D’s breach created a foreseeable risk of harm and Ps injuries fall within the scope of the foreseeable harm

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52
Q

Proximate cause - eggshell skull plaintiff

A

P is entitled to recover all the damage he suffers even if surprisingly great in scope (ie D must take P as he finds his P)

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53
Q

PC - Direct cause case

A

if there is an uninterrupted chain of events from the negligent act to Ps injury, D is liable for all resulting foreseeable harm regardless of the unusual manner in which they arose.

54
Q

Indirect cause questions (Intervening and superseding)

A

Intervening: a new force joins D’s action to cause Ps injury. D is not liable if the intervening force was not foreseeable. If D’s negligence did not cause increased risk of the intervening force, the intervening force is superseding.

Superseding: forces break the causal connection between Ds negligent act and Ps injury

55
Q

Damages

A

A P must prove damages in the form of physical injury or property damage, economic harm alone is insufficient for a claim of negligence

*Mitigation: P cannot fully recover if P could have mitigated damages

56
Q

Negligent Infliction fo Emotional Distress (NIED)

A

To recover for NIED, P must show: (1) P was foreseeable, (2) P suffered from severe emotional distress, unless: (1) near-miss fact pattern, (2) bystander fact pattern, (3) relationship fact pattern, (4) D’s negligence

57
Q

Defenses to Negligence

A

Contributory negligence, comparative, assumption of risk, no defense aka firefighter rule

58
Q

Contributory Negligence

A

Under common law, conduct by P that contributes to the cause of the injury and falls below the standard of care to which she is required to conform to, bars her complete recovery, UNLESS D had the last clear chance to avoid the harm

*imputed contributory negligence: contributory negligence of 3Ps will be imputed to P and bar her claim only if P is vicariously liable for the 3Ps negligence

*Last clear chance: D must have the last clear chance to avoid the harm, not P

59
Q

Comparative negligence

A

If D shows P failed to exercise proper care for her own safety, Ps recovery should be reduced by the percentage of her fault determined by a jury

60
Q

Partial modified comparative negligence

A

Majority - Ps fault up to 50% results in reduction of recovery by Ps percentage of fault but Ps fault past 50% is an absolute bar to recovery

61
Q

Pure comparative negligence

A

Minority - P will recover so long as she is less than 100% liable

62
Q

Assumption of risk

A

If P (1) knew of the risk and (2) voluntarily proceeded in the face of the risk, she may be denied recover under AOR. Discuss both types below

*Implied AOR: Knowledge of risk is implied where the average person would appreciate the risk (common carriers and public utilities cannot limit liability by a disclaimer)

*Express AOR: By express agreement, P assumes the risk.

63
Q

No defense

A

Firefighters and police officers can never recover for an injury since that is an inherent risk of their occupation.

64
Q

Strict Liability - Animals

A

(1) Trespassing animals: An owner is strictly liable for foreseeable damage done by trespass of his animals

(2) Domesticated animals: An owner of domesticated animals is not strictly liable but negligent for damage
*Exception: an owner who has knowledge of his domesticated animal’s vicious or dangerous propensities is strictly liable to licensees, invitees, and general public, NOT trespassers

(3) Wild dangerous animals: an owner is strictly liable to licensees and invitees for injuries caused by wild animals, even those kept as pets

65
Q

Strict Liability - Abnormally dangerous activities

A

If D engages in abnormally dangerous activities, D is strictly liable for injuries of all foreseeable plaintiffs. An activity is abnormally dangerous or ultra-hazardous if: (1) there is a high risk of death inherent in the activity, (2) the product/activity is not a matter of common usage, (3) the degree of danger outweighs the benefit to the community, (4) even if D took utmost care to prevent the harm, the activity cannot be made safe,

**For SL to attach for an ultra-hazardous activity, the nature of the harm or loss has to emanate from the ultra-hazardous activity

66
Q

Products liability approach - assess all 5 theories

A

(1) strict products liability, (2) negligent products liability, (3) breach of express warranty, (4) breach of implied warranties, and (5) Battery

67
Q

Strict Products Liability

A

A D is strictly liable for Ps injuries caused even when there is extreme care of precaution used to avoid the harm.

68
Q

Strict Products Liability Duty

A

Commercial suppliers (manufacturers, wholesaler, retailer) owe an absolute duty to foreseeable plaintiffs, either consumers, product users, or bystanders to avoid unreasonable risk of harm and to put safe products on the market

69
Q

SP Breach

A

Manufacturers breach their duty to foreseeable Ps if their product is defective for its foreseeable use when it left Ds control. Defects may be either: (1) manufacturing defect or (2) design defect, (3) failure to warn

70
Q

Manufacturing defect

A

a product has a manufacturing defect when it differs from all the other products made on the same assembly line in a way that makes it more dangerous than consumers would expect.

71
Q

Design defect

A

occurs when a products design on all products creates a risk of harm to consumers. To show a defect, P must use either consumer expectation test OR alternative design test/risk utility

72
Q

Consumer expectation test

A

under this test, a D is liable if P can show that the product failed to perform safely as an ordinary consumer would expect (D must anticipate reasonable misuse)

73
Q

Alternative Design/Risk utility

A

Under this test there is: (a) an alternative design that is safer than the version marketed, and (b) this design will not impair the utility or cost-effectiveness of the product.

74
Q

Defenses to Strict Products Liability

A

Comparative fault, contributory negligence, assumption of risk, state of the art, misuse of product

75
Q

State of the art

A

a SOA product is one where there is no reasonably foreseeable alternative design available at the time the product was made

76
Q

Misuse of Product

A

Which is unforeseeable is a defense

77
Q

Negligent products liability

A

P must show that the manufacturer of the product had a duty to her, the manufacturer breached that duty, and breach caused her damages

78
Q

Breach of warranties

A

There are two implied warranties in every sale of goods that can serve as the basis for a products liability suit. Any buyer, family member, or houseguest can sue under these theories and P does not have to prove fault on the part of D. There may also be an express warranty in a sale of goods.

79
Q

Implied warranty of merchantability

A

This warranty is breached when the goods are not of average acceptable quality or are not fit for the general purpose for which they were intended.

80
Q

Implied warranty of fitness for a particular purpose

A

This warranty is breached when (1) the D has reason to know the particular purpose for which the consumer requires the goods, and (2) that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods of the kind

81
Q

Express Warranty/misrepresentation

A

Breach of an express warranty arises when a product does not conform to the affirmative representation made by the D that was part of the basis of the bargain at the time the purchase was made.

82
Q

Defenses to negligent products liability

A

disclaimers, tort defenses, limitation of consequential damages

83
Q

Disclaimers

A

A seller may, under the UCC, disclaim both implied and express warranties
*Merchantability: A seller may make a written disclaimer of the warranty of merchantability, but only if it is conspicuous AND the word “merchantability” must be specifically mentioned.
*may have an implied disclaimer where good sold as is

84
Q

Tort defenses

A

Assumption of risk, comparative fault, contributory negligence, product misuse in implied warranty claims, and failure to provide notice of breach

85
Q

Limitation of consequential damages

A

Sellers may try to limit the remedies available for breach. However, in the case of goods designed for personal use, limitation of damages clauses for PI are automatically unconscionable and unenforceable.

86
Q

Private Nusiance

A

(1) a substantial and unreasonable interference (2) with Ps use and enjoyment, (3) of Ps real property,

*Substantial: Interference that is offensive, inconvenient or annoying to the average person in the community. It is not substantial if P is hypersensitive and is using her property in a certain way

*Unreasonable: Severity of inflicted injury must outweigh the utility of D’s conduct

87
Q

Public Nuisance

A

(1) an unreasonable interference, (2) with the health, safety, welfare, and property rights of the community

*Generally, public nuisance actions are brought by the government unless P: (i) suffers damages that are unique, and (ii) damage to P is beyond the ordinary damages that the public incurred

88
Q

Defamation

A

Common law defamation requires P to show: (1) D made a defamatory statement, (2) of or concerning P, (3) that he published to a third person, (4) that caused damage to Ps reputation.

89
Q

Defamatory statement

A

one that is tending to adversely affect one’s reputation and subjects P to contempt, ridicule, scorn or seriously damages Ps reputation.

*statements of opinion are considered defamatory and actionable if a reasonable reader/listener would reasonably believe that one speaker had a factual basis for his opinion.

90
Q

Published

A

P must show the statement was communicated to a third person who understands the defamatory meaning

91
Q

Damages for defamation

A

depend on whether the statement was written (libel) or spoken (slander)

92
Q

Libel

A

a written defamatory statement and general damages are presumed

93
Q

Trade libel

A

written defamatory statement about Ps business and P must prove special damages because general damages are not presumed

94
Q

Slander not per se

A

spoken statement, and damages must be proven

95
Q

Slander per se

A

involves the following 4 categories of statements made by d relating to (CLUB), and damages need not be proven:
(1) C rimes of moral turpitude
(2) L oathsome diseases
(3) U nchastitty of a woman
(4) B usiness or profession

96
Q

Constitutional considerations to defamation

A

arises whenever Ds statement deals with a matter of public concern, and the P must prove 2 additional elements: (1) falsity and (2) fault

97
Q

Matter of public concern:

A

to determine whether the matter is a public or private concern, the court will look to the content, form, and context of publication

98
Q

Falsity

A

statement is presumed true so P must show it is false

99
Q

Fault

A

The type of fault P must prove depends on whether the P is a public of private figure. If P is a private figure, negligence must be shown. If P is a public figure, malice must be shown.

100
Q

Public v. Private figure

A

Public figure is a person who has achieved some fame or notoriety or voluntarily assumes a central role in a particular public controversy

101
Q

Defenses to Defamation (C-TAQ) like Sea-Tac

A

consent, truth, absolute privilege, qualified privilege

102
Q

consent

A

defense so long as D does not exceed the scope of the defense

103
Q

truth

A

if D can show the statement is true, he is not liable but the burden of proof is on D

104
Q

absolute privilege

A

D has an absolute privilege if defamatory statement is made: (1) during judicial proceedings, (2) by legislators during debate, (3) by federal exec officials, (4) in political candidate broadcasts, and (5) in between spouses

105
Q

qualified privilege

A

D has a qualified privilege if (1) reports of public proceedings, (2) statements to protect the interest of the publisher, (3) statements to protect the interest of others, (4) statements in matter of public interest, (5) neutral reportage

106
Q

Invasion of Privacy - 4 different privacy torts

A

(1) commercial misappropriation, (2) intrusion upon seclusion, (3) false light, (4) public disclosure of private facts, and (5) defenses to privacy

107
Q

Commercial misappropriation

A

occurs when (1) D uses Ps name or image, (2) without Ps consent, (3) for a commercial advantage

108
Q

Intrusion upon seclusion

A

occurs when (1) D invades Ps physical seclusion, (2) where P had a REOP, (3) in a way that would be highly offensive to the average person.

109
Q

False Light

A

occurs when (1) D engages in widespread dissemination, (2) about a material falsehood about P, that would be highly offense to a reasonable person.

110
Q

Public disclosure of private facts

A

occurs when (1) there is a widespread dissemination, (2) of confidential information about P, (3) that would be highly offensive to a reasonable person.

111
Q

Defenses to privacy

A

(1) Consent, (2) absolute/qualified privileges (available for false light and public disclosure of private facts

*TRUTH IS NOT A DEFENSE

112
Q

Miscellaneous torts

A

intentional misrepresentation, negligent misrepresentation, malicious prosecution, abuse of process, interference with contractual relations, interference with prospective economic advantage

113
Q

Wrongful torts

A

wrongful termination, wrongful birth/life, wrongful death, loss of consortium

114
Q

Intentional Misrepresentation

A

(1) Misrepresentation by D of a material fact, (2) with scienter (d knew or should have known of falsity), (3) D had the intent to induce P to act in reliance, (4) which causes P to act in justifiable reliance (causation), and (5) P has suffered pecuniary loss (damages)

115
Q

Negligent Misrepresentation

A

(1) misrepresentation by D, (2) in a professional or business capacity, (3) where D breaches a duty to P, (4) causing P to justifiably rely on Ds misrepresentation, (5) resulting in economic damages to P

**defense: comparative negligence

116
Q

Malicious prosecution

A

(1) institution of criminal/civil proceedings against P by D, (2) where termination is favorable to P “on the merits”, (3) with an absence of probable cause to believe charge/claim is valid, (4) where D had an improper purpose in instituting the action, and (5) P suffers damages

*NOTE: P in a malicious prosecution case was the defendant in the previous civil or criminal proceeding. D in a malicious prosecution case was the P in the previous civil or criminal proceeding
* prosecutors are immune from liability

117
Q

Abuse of process

A

(1) the intentional misuse of the legal process (civil or criminal), (2) where D acts against or threatens P to accomplish D’s ulterior motive, (3) causing damages to P

118
Q

Interference with Contractual Relations

A

(1) there is a valid K between P and a third party, (2) D has knowledge of the K, (3) D intentionally interferes with the K, (4) that induces breach, (5) causing damage to P

*Defenses: truth informaiton, K is illegal or against public policy, person is responsible for the welfare of another acting to protect that person’s welfare, person is trying to protect his own legally protected interest

119
Q

Interference with Prospective Economic Advantage

A

(1) there is a valid business expectancy between P and a third party, (2) D has knowledge of the prospective economic advantage, (3) D intentionally interferes with the prospective economic advantage, (4) which ends the business relationship. (5) causing damages to P

**Defenses: fair and/or ethical competition, acting to protect one’s own financial interest, truth information, K is illegal or against PP, person is responsible for the welfare of another acting to protect that person’s welfare, person is trying to protect his own legally protected interest

120
Q

Wrongful termination

A

where termination of an employee offends notions of public policy

121
Q

Wrongful birth/life

A

where parents have an unwanted child which results because of Ds negligence and P is able to recover economic damages and costs of rearing the child, if child has birth defects

122
Q

wrongful death

A

Modern: Ps specific relatives (ie spouses, kids) can recover pecuniary loss, if there was a wrongful death cause of action

*If employee: the employee must have been acting within the scope of his/her employment when he/she killed

Damages: does not include amount of money decedent would have earned

123
Q

loss of consortium

A

Ps spouse can recover due to loss of companionship during other spouse’s injury (however, only for that period of the spouse’s injury)

(1) loss of services/support from partner/spouse
(2) loss of society (companionship)
(3) loss of sex with partner/spouse

124
Q

Vicarious liability

A

where D is liable for a 3Ps wrongful conduct because of a special relationship between them.

125
Q

Respondeat superior

A

(employer-employee): An employer is liable for the torts of his employee if they are within the scope of the employment relationship.

Intentional Torts are outside the scope of employment generally UNLESS:
(1) the employee is granted a right to use physical force during his job (ie guard), (2) job generates friction and employee flips out on customer, (3) employee is furthering the business of the employer

126
Q

Independent-Contractor hiring party

A

Generally, principal is not liable UNLESS: (1) IC is engaged in an inherently dangerous activity, (2) hiring party has a non-delegable duty, (3) P has reason to believe the IC is an employee of Ds, (4) D was negligent in hiring IC, or (5) D knows the IC must commit a trespass and damages result

127
Q

Parents-children

A

parents generally not liable for intentional torts of their children unless they knew or should have known the child had violent tendencies to commit that particular tort

128
Q

Partner/Joint venture liability

A

partners are liable for activities of their partners conducted in the scope and course of joint venture

129
Q

Family car doctrine

A

Some states hold the owner liable for tortious conduct of immediate family/household members who are driving with owner’s permission

*Negligent entrustment: an owner is liable for her own negligence in entrusting her car to a 3P who commits a tortious act when the owner knew or should have known such a result could occur (ie drunk driver)

130
Q

Dramshop acts

A

some states impose liability on bar owners for torts caused by their drunk customers

131
Q

Joint and Several Liability

A

When two or more people act in concert OR where they are vicariously liable OR where they acted independently but P has a single indivisible injury, each tortfeasor will be held jointly and severally liable.

*P can recover all his damages from one tortfeasor

*Modernly: Each D is responsible for his share of the damages

132
Q

Tort immunity

A

Gov immunity - public officials carrying out their official duties are immune from tort liability so long as their acts are done without malice or improper purpose.

*gov cannot be sued for acts committed in the regular course of business,

*gov may be sued for acts committed in the course of business that are not regularly conducted by the government

133
Q

Recovery

A

(1) Contribution: Co-Ds owe out-of-pocket D based on their percentage of fault

(2) Indemnification: occurs when there is a pre-existing relationship between parties and the burden of judgment can be shifted from one tortfeasor to another

Bar Prep (8 decks)

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