The Bar-Torts Flashcards
Res Ipsa Loquitor
P must show that accident causing injury is type that would not ordinarily occur unless someone was negligent, and that negligence occurs bc of someone in D’s position.
- Does not shift burden
- Does not allow presumption of negligence
Dependent v. Independent Intervening Forces
Dependent intervening forces are normal responses or reactions to situations created by D’s negligence, which are usually foreseeable and therefore the D is usually liable. These include (1) subsequent medical malpractice (2) negligence of rescuers (3) efforts to protect person or property and (4) reaction forces –other swarm or retreat and stampede etc. (5) subsequent disease (6) subsequent accident
Independent intervening forces are independent actions other than natural responses to the situation like (1) negligent acts of 3rd party, (2) criminal act of 3rd party or (3) acts of God. D is is liable for results of IIFs where foreseeable or where his negligence increased risk .
Foreseeable Results Caused by Unforeseeable Intervening Forces
D usually liable
e.g. D leaves barrel of oil out. Risk of foreseeable harm means D is liable even for unforeseeable acts (lightning) unless that act is an intervening criminal or tortious act.
Unforeseeable Result cased by Foreseeable Intervening Force
D not liable
e.g negligent driving but harm to P is branch falling on roof
Unforeseeable Result, Unforeseeable Intervening Force
No liability
Duty–What and to Whom
Everyone has a ordinary prudent reasonable person duty to all forceable victims
To Whom is a Duty Owed/Who are foreseeable victims?
Rescuers (unless the rescue is wonton) , viable fetuses, intended beneficiaries of economic transactions.
Duty–Standards of Care
1-Ordinary
Ordinary: Objective–takes into account physical but not mental disability–with average knowledge of avg member of community
Duty of Care–Professionals
Professionals–Person with special skills or knowledge is held to standard of member of that profession in good standing under similar circumstance (in same community, except in medical where national std applies)
Duty of Care–Common Carriers and Innkeepers
High Duty of Care-liable for even slight negligence
Duty of Care–Landowners
trespassers–duty to only discovered or anticipated trespassers–known extremely dangerous artificial conditions.
attractive nuisance doctrine–landowner owes duty of ordinary care to children, where your property is likely to attract children, where cost is slight compared to risk.
licensees–(social guests/not business guests) duty to warn or make safe dangerous conditions known to owner that licensees is unlikely to discovery (not duty to conduct inspections) (“all known traps”)
invitees–(land held open to public/businesses) same as above plus duty to make inspections (‘all reasonably knowable traps”
Affirmative Duty to Act
Where D creates peril, special relationships (common carriers, parents, public accommodation, by contract, you already started helping .
Self Defence
- may be of self, others, or property
- threat must be in progress or imminent
- must have reasonable belief that threat is genuine (a reasonable mistake will not destroy the privilege)
- force used must be proportional
Proportional Self Defence
- You can only use proportional force
- in life threatening situation, you may use deadly force
- you cannot do by machine what you cannot do in person (cant use mechanical gun to protect land)
Necessity–when is it available as a privilege?
Only available for
1. Trespass to Land.
2, Trespass to Chattels
3, Conversion
Public Necessity
Available as a defence where an individual acts in an emergency to protect the community as a whole:
- emergency must be natural–not coming from plaintiff (or like a sniper shooting people)
- D uses someone else (like steals a fire extinguisher)
(policy–dont want actor to hesitate)
Private Necessity
where D commits property tort in emergency to protect his own interest or a interest of his own
consequence:
1 . D remains liable for compensatory damage/actual damage
2. D not liable for nominal or punitive damages
3. P cannot throw D off land as necessity continues (must tolerate his presence.
Elements of Defamation
- D makes a defamatory (tending to adversely effect reputation/bring you down in esteem of other people) statement about the plaintiff.
- Publication of the statement (D must reveal it to at least one person other than plaintiff) (more sharing = more damages). Publication need not be intentional.
- Damages (can be presumed in certain cases, slander per se, libel) (economic loss-job loss, contract loss, cannot be just social damages)
Limitations on Defamation
You can only defame a living person
name calling is not defamatory
a non-factual opinion is not defamation (but if you have factual support, it is)
Publication (as an element of Defamation)
need not be intentional
reveal to at least one other person
Libel
defamatory statement permanently embodied in medium of expressions
presumed damages
Damages in Libel case
Presumed
Slander per se
Damages are presumed:
- where statement about P’s business or profession
- you say that P has committed a serious crime of moral turpitude (has to do with violence or honesty)
- imputing unchastity of a woman (sex outside of marriage)
- , you say that P suffers from a loathsome disease–VD or leprosy
Affirmative Defences to Defamation
- Consent
- Truth (burden on Defendant)
- Privilege (absolute or qualified)
Absolute privilege as an affirmative defense to defamation
- *depends on the status of the defendant
- -i.e. you can tell your spouse anything you want.
- -remarks made by federal or state legislators in their official capacity during legislative proceeedings, and fnuofficers of government (judge, witness, lawyer)-you can put things in briefs, quote, and this can never be basis of a defamation suit–includes legislative record
Qualified privilege as an affirmative defense to defamation
- *based on the circumstances of the speech
1. public interest in encouraging candor - -e.g. a LL can tell other LL stuff about their tenants, professors can say things about their students (even if they dont turn out to be true)
Requirements:
1. Good faith, confined to matters relevant to topic.
First Amendment limitations on defamation–matters of public concern
Where statement is a matter of public concern, you must prove two additional elements
1. Fault–statements not made in good faith
(where public figure–P shows knowledge or recklessness w/r/t truth. where private figure–P shows it was made with negligence)
2. Plaintiff has burden of proving falsity
What are the 4 privacy torts?
Appropriation
Intrusion into P’s seclusion
False Light
Disclosure
What type of fault must P show where pubic figure, matter of public concern?
P must show actual malice: D acted with knowledge or recklessly with respect to truth
What type of fault must P show where private figure, matter of public concern?
P shows that D acted negligently w/r/t truth
Approprioation
D uses P’s name or picture for commercial purposes.
**doenst matter that picture is of someone unimportant
**newsworthiness exception–no tort if newspaper puts pic of athlete
newsworthiness exception
applies to appropriation and disclosure, no tort if newspaper puts pic of athlete, etc.
Intrusion into Seclusion
Invasion of P’s seclusion in a way that would be highly offensive to the average person, in place where P has a reasonable expectation of privacy
- think wiretapping/covert video surveillance/peeping tom
- not where someone takes your photo while you are on the street
False Light
Widespread dissemination of material falsehood about the Plaintiff that would be highly offensive to the average person.
Difference= you can have EMOTIONAL damages!
i.e. telling everyone a big lie–mischaracterizing someone’s religious belief
What’s the biggest difference between Slander and False Light?
In slander you can only recover economic damages, in false light you may recover for emotional damages.
Disclosure
Widespread dissemination of confidential info about P that would be highly offensive to average persons (true!)
Must have been truly private–its not private if your close friends know–must be something people really don’t know.
e.g. publishing someone’s medical records
Biggest Dif between Disclosure and False Light?
Disclosure is of true gossip, false light is false gossip
Defenses to Torts of Privacy
- Consent
2. For False Light and Disclosure: Privilege.
Negligence
Elements:
Duty Breach Causation (factual and legal) Damage
To whom do you owe a duty?
Foreseeeable victims of your carelessness only!
(rescuers are forseeeable victims!)
Unforeseeable victims are far away–think firework train cae
What duty is owed (generally)
Owe duty of ordinary care: Must take as much care as a reasonable prudent person would take under similar circumstance.
What doesn’t matter: person’s mental capacity
What does matter: physical attributes of the D–blindness, wheel chair, height if relevant
Duty of Care for People of Superior Skill or Knowledge
compare D to a reasonable person with such superior skill or knowledge
Duty of Care for People of Different physical ability
reasonable person with that attribute–blind person, etc
Special Duties (6)
- Claims against children, professionals, premises liability, statutory, act affirmatively, negligent infliction of emotional direstress
Duty owed by children
- Kids 4m children must behave as hypothetical child of similar age, experience, and intelligence, acting under similar circumstances–a flexible and subjective standard.
**Child engaged in adult activity is held to adult standard of care (operating a motor vehicle) (split on hunting)
Duty of Care owed by Children Engaging in Adult Activity
Ordinary standard of care
Duty of Care for Professionals
(health care, accountants, lawyers, any job requiring special skills)
Restatement: A professional is obligated to exercise the skill and knowledge normally possessed by members of the same profession in good standing. (behave with same care as avg. member of of same professional)
**look at national standard of care
**P needs an expert witness to establish the standard of care
–this means you can conform to practice, and custom IS dispositive. CUSTOM OF PROFESSION IS STANDARD OF CARE
How does Custom factor in to assessing standard of care:
Evidence but not dispositive for ordinary duty.
DISPOSTIVE in Professional duty case
Duty owed to Unknown Trespassers
Unknown means unknown or undiscovered trespassers (and no reason to know)
NO DUTY OF CARE bc unforeseeable
Duty owed to Known trepassers
This includes anticipated trespassers, where there is a pattern of trespassing you know.
Standard: possessor must protect anticipated trespasser from highly dangerous, artificial, concealed hazards about which the landowner had prior knowledge (known, made made death traps)
Duty owed to Licensee
Landowner owes licensees duty to protect from concealed conditions about which the possessor had prior knowledege
Duty owed to invitees
Landowner owes invitees a duty to protect from all concealed conditions that the possessor knew or could have discovered through reasonable inspection.
3 exceptions for premises liability
Police officers/fire fighters–never recover for injury inherent risk of job.
Child trespasser: Property owner owes reasonable care to children under attractive nuisance doctrine. need not be attracted to the thing that injures them. Consider age of children.
How can you satisfy your duty for premises liability cases
Eliminate hazard, or warn–
Statutory Standard of Care
Where you borrow the terms of a statute instead of reasonable standard of care–where you find someone broke the statute, they are negligent per se.
P must show (1) he is member of class of persons statute is trying to protect and (2) accident occurred is within the class of risks that statute was trying to prevent
Negligence per se
duty and breach established where someone broke statute that satisfies class of risk test.
Exceptions to Statutory Standard of Care
- -no liability even where conditions are met where:
1. compliance is more dangerous than violation
2. compliance was impossible under circumstances (medical emergency)
Duties to Act affirmatively
(1) pre existing relationship (employer/employee, innkeeper/guest.
(2) D caused the peril–
(3) if you start to rescue, you are obligated to help reasonably (unless changed by a good Samaritan Law)
Negligent Infliction of Emotional Distress
- for when P did not suffer physical harm
1. near miss: D’s negligence put P in zone of physical danger, and show subsequent manifestations of distress
- Bystander: 3rd party who is a close family member of victim witnesses (hears, sees, perceives) injury and suffers emotional distress
- -must be contemporanous (see it happen) - Where P and D are in a pre-existing business relationship and it is highly foreseeable that careless performance by D will cause significant distress
e. g. false positive diagnosis, funeral parlor,
Nuissance
A private nuisance is a substantial, unreasonable interference with another person’s use or quiet enjoyment of her property. Must be offensive, inconvenient, or annoying to the average person in the community, not a specialized use.
Partial Comparitive Negligence
P can ecover damages as long as her negligence was less serious than, or no more serious than D,
When there are multiple D, most use Combined Comparison which compares every P to the combined negligence of the other parties, allows recover as long as no more than combined other.
3 parties P1=51%, P2= 10% P3=39%
1 v. 2 +3 51 v 49? NO
2 v 1+3 10 v 90 OK
3 v. 1 and 2 : 39 v. 61 OK
Right to use Force to Recover Chattle
ONLY in hot persuit to stop theft,
No force allowed where other person lawfully possessed the chattel (bc you gave him limited permission, etc)
Breach
Did D’s conduct fall short of the standard of care (by act or commission)
2 things:
“P will allege that the unreasonable conduct here was the the D_____” P will argue that this was unreasonable because ________”
Factual Causation
Linkage between breach and injury
but for Causation–
a question for the jury to decide
Factual Causation-merged caused
Where each negligent defendant did something bad and together they hurt the plaintiff. But for test wont work because both might fail. (2 separate fires burn a building)
Standard: substantial factor test: was each breach capable of causing harm all by itself
Factual Causation-Unascertainable claims
Where only 1 D caused the injury but its impossible to know whom (quail shooting).
Standard: shift burden of proof to defense to show lack of negligence.
Legal Cause
Whether liability is fair–and it is fair where foreseeable–factors = time, distance, weirdness.
When is foreseeability a matter of law?
- intervening negligent medical treatment
- intervening negligent rescue
- intervening reaction of protective forces (car accident causes stampede)
- subsequent disease or accident.
Egg shell plaintiff rule
Once D has committed elements of negligence, D is liable for all harm caused even if P is unusually sensitive. (take P as you find him)
Comparative Negligence
A defense.
Must prove that P failed to exercise proper care.
Then jury weights and assigns each party a % based on degree of fault. You reduce the P’s award by that amount.
Partial/Modified Comparative Neglience
Where P’s fault is under 50% you reduce recovery by that amount
BUT where P’s fault is >50% its a total bar to recovery.
Strict Liability–When
Wild Animals, Abnormally Dangerous Activities, Defective Products
Liability for Wild Animals
Strict! doesn’t matter how many safety precautions you take
not SL for domestic unless you have knowledge of its danger (this specific dog, etc)
No liability for trespassers.
Abnormally Dangerous Activities
SL where:
a. activity is one that creates foreseeable risk of serious harm even when reasonable care is exercised.
b. we lack technology to make it safe.
in general, activity cannot e common where conducted (crop dusting)
What activities are ALWAYS considered abnormally dangerous?
Blasting Explosives
Transporting Chemical Material
High Dose Radiation/Nuclear Energy
Defective Products–Elements
a Strict Liability offense
- D is a merchant, including parties up the distribution claim and lessors (not a casual seller, or service provider)
- Product is Defective (manufacturing defect, design defect, information defect)
- Defect existed when product left D’s hand (i.e. has not been altered)
- P must be making foreseeable use of product at time of injury (»intended use)
Manufacturing Defect?
Product differs from other products from the same factory in a way that makes it more dangerous than consumers would expect.
Design Defect
Fails risk utility test–>the danger of the product outweighs its value and a reasonable person would not have put it on the market.
**P must show viable alternative design–would have been safer than version sold but no more expensive and not impractical
**Failure to conform to relevant regulation is conclusive that it is defective.
Information Defect
If product cant be redesigned physically in cost effective way but has residual risk unknown to consumers and is known to maker but lacks warning.
Warning must be adequate–needs to be visible, correct, easy to find.
Affirmative Defense for Strict Liability Crimes
Comparative responsibility (just like comparative negligence)
Nuisance
Interference with one’s ability to use and enjoy one’s real estate to an unreasonable degree.
Question is whether degree of interference is too much–must be seriously annoying–to ordinary person
i.e. inconsistent land use–putting a smoke factory next to an asthma hospital
Respondeat Superior
Employer is vicariously liable for torts of employees committed within the scope of their employment (not for outside scope or intentional torts unless.)
May be liable for intentional torts where: force is within the job title, job generates animosity (debt collector), or employee engages in intentional tort out of motive of serving bosses purpose
(think bouncer/security guards)
When is an employer liable for intentional torts of employees?
May be liable for intentional torts where: force is within the job title, job generates animosity (debt collector), or employee engages in intentional tort out of motive of serving bosses purpose
(think bouncer/security guards)
Is a parent responsible for torts of kids?
no! but may be liable for negligent supervision.
Hirer/Independent contractor?
no vicarious liability unless independent contractor hurts a customer on premises.
automobile owner/driver
no vicarious liability unless someone hires driver to do errand–then there is a principle agent relationship and VL
Negligent Hiring, Supervision, Entrusment
not examples of vicarious liability
Comparative Contribution
Jury will assign damage amount to multiple D, if one is insolvent others must pay—run the risk of poorness
except: indeminifcation
indemnification
if you have been held vicariously liable and the other tort committer is in the case you can make him (employee) pay for it all
Product liability–retailer can get indemnity from manufacturer
Loss of Consortium
Where victim was married, uninjured spouse has a separate cause of action and same defenses apply
damages include loss of services, loss of society, loss of sex–need to be proved
Intentional Torts–general
Extreme sensitivity of the P ignored when deciding if P has a claim!–always assume you are dealing with someone of ordinary sensibility
No incapacity defenses–D cant lack capacity to commit intentional tort–even children held liable
Intent–defined
A D acts intentionally (with purpose or knowledge) if he desires to bring about forbidden result or knows result is certain to occur.
Battery
- intent
- to commit a harmful of offensive contact (un-permitted) (ordinary sensitive)
- with the plaintiff’s person (includes anything P holds, touches, or carries–grabbing your purse, jumping on car while you’re in it.
- harmful or offensive touching happens
(need not produce instantaneous harm)
Assault
1 intent
- D must place P in reasonable apprehension of an immediate battery (apprehension means awareness, knowledge, not fear)
(LOOK UP: assault is also a botched battery bc of transferred intent?)
words alone lack immediacy, requires some kind of menacing gesture
words can negate immediacy
False Imprisonment
- intent
- D must commit an act of restraint
- P must be confined in a bounded area
**threats are sufficient–ill shoot you if you leave/ill call the cops etc
**omissions can be acts of restraint if you have pre-existing duty to act
**act does not count unless P is aware or harmed by conduct.
False Imprisonment–Act of Restraint
**threats are sufficient–ill shoot you if you leave/ill call the cops etc
**omissions can be acts of restraint if you have pre-existing duty to act
**act does not count unless P is aware or harmed by conduct.
False Imprisonment–Bounded Areas
Need not be marked by physical boundaries, can be approximate like don’t leave the park
Area is NOT bounded if there is a reasonable means of escape that P can reasonable discovery without danger, disgust, or humiliation. Not reasonable if P does not know about it.
Intentional Infliction of Mental Distress (IIED)
- relaxed intent–desire, knowledge, recklessness
- D must engage in outrageous conduct–exceeds all bounds of decency tolerated in civilized society. (not mere insults)
- P must suffer severe distress–P can prove this thru any evidence–shrink, missing work, don’t need physical symptoms
(watch out for P feeling mildly annoyed–never good enough)
Hallmarks of IIED
–continuous or repetitive conduct can turn words into IIED.
–D is common carrier or innkeeper–owe duty of courtesy–more likely to be held liable
–where P is member of a fragile class of people (kids, elderly, pregnant women when D knowns, or if D has knowledge of P’s peculiar emotional sensitivity
Elements of Misrepresentation
Misrep of material fact,
that you you knew or believed was false/w/o basis
intent to produce act of refrain from acting in reliance
causation
justifiable reliance
damages
negligent misrepresentation
misrep by D in business/professional capacity breach of duty causation justifiable reliance damages
interference with business relations
valid contract exists, D knows of it, itnentionally inteferes by inducing breach or termination, damages
Attractive Nuissance Doctrine
1 dangerous condition on land that owner knew or should have known about
- owner knows/should know kids go to land
- very dangerous (bc of kids age maybe)
- cost of fixing
