MBE Torts Flashcards
Three Elements—to prove an intentional tort, the plaintiff must prove:
o Act;
o Intent; The actor acts with the purpose of causing the consequence; or
The actor knows that the consequence is substantially certain to follow.
and
o Causation.
Tort of battery
1) Defendant causes a harmful or offensive contact with the person of another (or anything connected to the person e.g. a hat/book); and
2) Acts with the intent to cause that contact or the apprehension of that contact.
What is harmful or offensive contact?
Harmful—causes an injury, pain, or illness
Offensive-A person of ordinary sensibilities would find the contact offensive.
Victim need not be conscious of the touching to be offensive. If the victim is unconscious, and the defendant knows that about the victim, the defendant may still be liable
Contact—the contact can be direct, but need not be
Damages for tort of battery
No proof of actual harm is required; the plaintiff can recover nominal damages.
The plaintiff can also recover damages from physical harm flowing from the battery. (eggshell plaintiff)
Many states allow punitive damages if the defendant acted:
▪ Outrageously; or
▪ With malice.
Eggshell plaintiff rule
a defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be.
Eggshell plaintiff rule
a defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be.
Tort of assault
defendant engages in an act that:
o Causes reasonable apprehension of an IMMINENT harmful or offensive bodily contact and must be aware of D’s action; and
o The defendant intends to cause apprehension of such contact or to cause such contact itself.
Damages for assault
No proof of actual damages is required;
the plaintiff can recover nominal damages.
The plaintiff can also recover damages from physical harm flowing from the assault.
In appropriate cases, punitive damages may be available
Elements of IIED
Intent- defendant intentionally or recklessly
Act- engages in extreme and outrageous conduct that
Causation- causes the plaintiff severe emotional distress (must be cause in fact)
What does extreme and outrageous mean?
Conduct that exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
Courts are more likely to find conduct or language to be extreme and outrageous if:
▪ The defendant is in a position of authority or influence over the plaintiff; or
▪ The plaintiff is a member of a group that has a heightened sensitivity (such as young children or the elderly).
Public figures and public officials cannot recover for IIED unless
they can show that the words contain a false statement of fact that was made with “actual malice.”
▪ Actual malice—with knowledge that the statement was false or with reckless disregard of its potential falsity.
o The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct at issue is speech on a matter of public concern
If the defendant directed extreme and outrageous conduct toward one party and ended up causing severe emotional distress to another party, the doctrine of transferred intent may make him liable for IIED, but only in certain circumstances:
- Immediate family member
2.Bystander
3.Different intentional tort: If the defendant commits a different intentional tort toward one victim, thereby causing severe emotional distress to another, the same rules apply.
A family member of the victim can recover for IIED if:
An immediate family member of the victim who is -
-present at the time of the conduct and
-perceives the conduct
may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress.
A bystander can recover for IIED if:
Can recover for IIED if:
-present at the time of the conduct,
-perceives the conduct, and
-suffers distress that results in bodily injury (i.e., physical manifestation of the distress).
Damages for IIED
plaintiff must prove severe emotional distress beyond what a reasonable person should endure.
Physical injury is not required (except in the case of a bystander, discussed above).
Nominal, subsequent physical injuries (eggshell), punitive sometimes
False imprisonment elements
o Defendant intends to confine or restrain another within fixed boundaries;
o The actions directly or indirectly result in confinement; and
o Plaintiff is conscious of the confinement or harmed by it
A court may find false imprisonment when the defendant has refused to perform a ____ to help a person escape
duty
Shopkeeper’s privilege: false imprisonment
—a shopkeeper can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter.
Intent for false imprisonment?
▪ With the purpose of confining the plaintiff; or
▪knowing that the plaintiff’s confinement is substantially certain to result.
NEGLIGENCE IS NOT ENOUGH
Damages for false imprisonment
plaintiff can recover nominal damages; actual damages are also compensable.
Defenses to intentional torts
Consent (express or implied)
Lack of capacity to consent
Self defense (use of reasonable force that is proportionate)
In defense of others
Defense of property (reasonable/non-deadly)
Parental Discipline
Privilege of arrest
Are you allowed to use force to regain possession of land?
▪ Common law—reasonable force permitted
▪ Modern rule—use of force is no longer permitted; only legal process
Are you allowed to use force to regain possession of land?
▪ Common law—reasonable force permitted
▪ Modern rule—use of force is no longer permitted; only legal process
trespass to chattels
an intentional interference with the plaintiff’s right to possess personal property either by:
dispossessing the plaintiff of the chattel or
damaging the chattel
Damages for trespass to chattels
o May recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair
o In cases involving use or intermeddling, plaintiff may only recover actual damages.
Tort of conversion to chattels
intentionally committing an act depriving the plaintiff of possession of his chattel
or
interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.
Conversion damages
plaintiff can recover the chattel’s full value at the time of conversion
Factors to consider when determine whether it is a trespass to chattel or conversion
The duration and extent of the interference;
Defendant’s intent to assert a right inconsistent with the rightful possessor;
Defendant’s good faith;
Expense or inconvenience to the plaintiff; and
Extent of the harm
Trespass to land
defendant intentionally causes a physical invasion of someone’s land
Defendant need only have the intent to enter the land or cause the physical invasion
Necessity as a Defense to Trespass
In general—available to a person who enters onto the land of another or interferes with that individual’s personal property to prevent an injury or other severe harm
Private: must pay actual damages caused
Elements of private nuisance
an activity that substantially and unreasonable interferes with another’s use and enjoyment of land.
Elements of negligence
- Duty—an obligation toward another party
- Breach—the failure to meet that obligation
- Causation—cause in fact (actual cause) and proximate cause (legal cause)
- Damages—the loss suffered
How to determine if there is a duty:
Majority view—Cardozo approach (see Palsgraff)
● A duty is owed to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct.
▪ Minority view (the Restatement view)—Andrews approach
● Anytime conduct could harm someone, there is a duty to everyone; whether this particular plaintiff was foreseeable is a proximate cause issue
In general, there is no affirmative duty to help others, but there are exceptions:
Assumption of duty—Voluntary Undertaking: a person who voluntarily aids or rescues another has a duty of reasonable care in the performance of that aid or rescue.
Placing another in danger
By authority—a person with the ability and actual authority to control another has a duty to exercise reasonable control.
By relationship—defendant has a special relationship with the plaintiff (e.g. common carrier (bus) and passenger)
What is the next thing you should analyze after establishing there is a duty?
the standard of care owed
What is the standard of care for:
General:
Mental and emotional characteristics:
Physical characteristics:
Intoxication:
Children:
G- Reasonably prudent person under the circumstances—generally an objective standard
Mental and emotional characteristics
Objective standard—defendant is presumed to have average mental abilities and knowledge
Physical characteristics
Modified standard—particular physical characteristics are taken into account; defendant is compared with a reasonably prudent person with like characteristics
Intoxication
Objective standard—held to the same standard as sober people unless the intoxication was involuntary.
Children
o Modified standard—reasonable child of similar age, intelligence, and experience
o Adult activities—Children engaged in high-risk adult activities (e.g., driving a car) are held to the objective standard for adults.
Standard of care for specific situations
Common Carriers and Innkeepers:
Automobile Drivers:
Emergency Situations:
Common Carriers and Innkeepers
o Traditional rule: Utmost care—highest duty of care consistent with the practical operation of the business
o Many courts today: liable only for ordinary negligence (not a higher standard)
Guests and friends in a car—drivers were traditionally liable only for grossly negligent, wanton, or willful misconduct (often under “guest statutes”).
o Most jurisdictions apply a general duty of reasonably standard to the driver of a car.
Emergency Situations—standard of care is that of a reasonable person under the same circumstances.
Standard of care for possessors of land
(2 approaches)
Traditional tripartite structure—one-half of jurisdictions continue to follow this approach The standard of care depends on the status of the entrant as a trespasser (lowest standard of care), a licensee (intermediate standard of care), or an invitee (highest
standard of care).
Modern (California) way—one-half of jurisdictions follow this approach
▪ Reasonable standard of care under the circumstances, with the status of the entrant as one of the relevant circumstances
Standard of care for land possessors to trespassers (both discovered/anticipated and undiscovered)
Duty: refrain from willful, wanton, intentional, or reckless misconduct
▪ Undiscovered trespassers—no duty owed
▪ Discovered or anticipated trespassers—must warn or protect them from hidden dangers
Elements of attractive nuisance doctrine
a) An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass;
b) The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm;
c) The children, because of their age, do not discover or cannot appreciate the danger;
d) The utility of maintaining the condition is slight compared to the risk of injury; and
e) The land possessor fails to exercise reasonable care
Standard of care for land possessors to licensees
Traditional rule: Land possessor has a duty to either make the property reasonably safe or warn licensees of concealed dangers.
▪ No duty to inspect for dangers
▪ Must exercise reasonable care in conducting activities on the land
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
California Way (Minority and Third Restatement approach)
land possessor duty
o Minority- Some states—reasonable standard of care under all the circumstances for all entrants
▪ The fact that the land entrant is trespassing is one fact that the jury may consider in deciding whether the land possessor has exercised reasonable care
o The Third Restatement § 52—reasonable care under the circumstances, except “flagrant trespassers”
▪ The only duty to flagrant trespassers (e.g. a burglar) is to not act in an intentional, willful, or wanton manner to cause physical harm.
Duties of Landlord in LL-tenant relationship
o Landlord must:
▪ Maintain safe common areas;
▪ Warn of hidden dangers (especially for premises that are leased for public use); and
▪ Repair hazardous conditions
Note. As an occupier of land, the tenant continues to be liable for injuries arising from conditions within the tenant’s control.
What is a breach of duty
A violation of the relevant standard of care
Traditional approach to analyzing a breach of duty
Reasonable person standard. Focuses on a common-sense approach of
what the reasonably prudent person would do under the circumstances.
Breach of duty: specific rules
Custom:
Generally:
Professionals:
Physicians: (traditional and modern)
Generally: evidence of custom admissible, but not dispositive
Professionals—lawyers, doctors, accountants, electricians
▪ Custom is admissible and dispositive
Physicians
▪ Traditional rule—physician in the “same or similar” locality
▪ Modern trend—national standard
Physicians, breach of duty, informed consent rules
Patients must give informed consent to procedures:
Doctors must explain the risks of medical procedures.
● Doctors are not required to inform the patient if:
o The risks are commonly known;
o The patient is unconscious;
o The patient waives/refuses the information;
o The patient is incompetent; or
o The patient would be harmed by disclosure (e.g., it would cause a heart attack).
Breach of duty: statutes
when a law or statute establishes a particular standard of care, violation of the law constitutes a breach; unexcused statutory violations constitute negligence per se.
Elements of Negligence per se
1) A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others;
2) Defendant violated the statute;
3) Plaintiff must be in the class of people intended to be protected by the statute;
4) The accident must be the type of harm that the statute was intended to protect against; and
5) The harm was caused by a violation of the statute
Defesnes to negligence per se
Excuse:
▪ Defendant may show that complying with the statute would be even more dangerous than violating the statute
▪ Compliance was impossible or an emergency justified violation of the statute
▪ Incapacity (physical disability), exercised reasonable care in trying to comply, vagueness
Elements of res ipsa loquitur
1) The accident was of a kind that does not ordinarily occur in the absence of negligence;
2) It was caused by an agent or instrumentality within the exclusive control of of the defendant; and
3) It was not due to any action on the part of the plaintiff.
Procedural effects of res ipsa
Allows the case to go to the jury
Avoids a directed verdict in favor of the defendant (allows the plaintiff to make a prima facie case of negligence without direct evidence of negligence)
Jury can infer negligence, but need not
Negligence: causation has two elements
proximate cause (legal cause)
Cause in fact (actual cause)
Cause in fact test
Test if there are multiple causes:
“But-for” test—plaintiff must show that the injury would not have occurred “but for” the
defendant’s negligence
“Substantial factor” test: The test is whether the defendant’s tortious conduct was a “substantial factor” in causing the harm.
If Plaintiff’s harm was caused by only one of a few defendants (usually two) and each was negligent, and it cannot be determined which one caused the harm then:
Courts will shift the burden of proof to the defendants—will impose joint and several liability on both unless one can show he did not cause the harm
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
If plaintiff’s harm was caused by two or more tortfeasors acting together collectively then:
then all defendants will be jointly and severally liable.
Loss of chance doctrine:
if a physician negligently reduces the plaintiff’s chance of survival, then that plaintiff can recover for the lost chance of recovery.
Plaintiff cannot recover the entire amount of damages; but can recover the portion that represents their lost chance of survival
Scope of liability for proximate cause:
Person is liable for the risks that made her conduct negligent. The issue is whether the injury that occurred was within the scope of the defendant’s breach.
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Majority rule for proximate cause
no liability for an unforeseeable type of harm
Intervening vs. Superseding causes
Courts used to distinguish between “intervening” causes, which do not break the chain of causation, and “superseding” causes, which do. Some courts still make this distinction.
Third-party criminal acts may or may not break the chain of causation.
Negligence: damages
compensatory damages: purpose is to make the plaintiff whole again
Negligence: Sometimes a plaintiff who suffers a physical injury can also recover for ________
emotional
damages (i.e., “parasitic damages”).
Negligence: Sometimes a plaintiff who suffers a physical injury can also recover for ________
emotional
damages (i.e., “parasitic damages”).
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Mitigation of damages: negligence
o Plaintiff must take steps to mitigate damages
o Can be considered a duty, but it’s more of a limitation on recovery
Categories of compensatory damages in a negligence action for personal injury
Medical expenses, both past
and future
Lost income and reduced earning capacity, past and future
Pain and suffering, both past and future
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Categories of compensatory damages in a negligence action for property damage
a. General rule—plaintiff may recover the difference in the market value
of the property before and after the injury
b. Cost of repair or replacement value often allowed as an alternative measure of damages
Collateral source rule
Benefits or payments to the plaintiff from outside sources are not credited against the liability of any tortfeasor.
Evidence of such payments is not admissible at trial.
However: Most states have passed statutes that eliminate or substantially modify the collateral source rule to avoid double recovery. (not VA)
Punitive damages in negligence actions
● Purpose is to punish and deter future conduct
● May be available if the defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved
● Availability may be limited by statute
The U.S. Supreme Court has held that as a matter of due process punitive damages must be within a single-digit ratio of any compensatory damages.
Recovering for NIED without showing physical harm
- Zone of danger
- Bystander recovery (closely related)
- Special Relationship (negligent diagnosis/negligent handling of loved one’s corpse)
At common law, plaintiffs could only recover for NIED if ______
they suffered a physical injury
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Elements of NIED Zone of danger
o The plaintiff was within the “zone of danger” of the threatened physical impact; and
o The threat of physical impact caused emotional distress.
