Tort Flashcards
Vicarious Liabiltiy - Negligence
Employers are vicariously liable for the employee’s negligence (committed) while the servants are acting within the scope of their employment/agency.
Vicarious Liabiltiy - Intentional Tort
Employers are generally not liable for an employee’s intentional tort, because intentional tortious conduct is not within the scope of employment unless force is authorized in the employment, friction is generated by the employment, or the employee is furthering the business of the employer.
Elements: Principals liable for intentional torts of agents (employees and IC) if:
- Force is authorized by employment
- Friction is generated by employment or
- Employee/agent furthering the business of employer
Under what authority employee/agent act to further the business on behalf of the employer –> Three types of authority – express, implied, apparent
Detour v. Frolic
Subrule: VL for detour, not frolic.
– E.g., of detour – “running an errand,”
– E.g., not scope of employment/detour – *worker commuting to work in his personal car *
If Small Detour or Minor Deviation from employee’s main scope of work –> not absolve ER of VL
If Frolic –> absolve ER of VL
Vicarious Liability - Independent Contractor
Principal is VL for IC’s negligence in two situations:
1. The IC is engaged in inherently dangerous activities; or
2. The duty is non-delegable
– E.g., duty to keep premises safe, house safe, car in good condition,
– E.g., duty of owner to keep premise from being dangerous to those offsite
– E.g., duty of an owner of a vehicle to keep the vehicle’s parts operating safely
Intentional Torts - General Rule
Intentional Torts require the intent to do the act (NOT the intent to commit the specific tort or to cause the particular harm).
Proximate cause is not significant issue in most intentional tort cases. Use “but-for” cause
Transferred intent for following intentional torts
List
- Assault
- Battery
- False imprisonment
- Trespass
- Trespass to chattels
Transferred Intent
Rule
Under the doctrine of transferred intent, when a defendant commits an act with the intent to harm that one person, but it instead causes harm to a second person, the mental state of the intended victim will “transfer”, or be assigned to, the actual victim. The law will treat the defendant as having intended the conduct to harm to the person who is actually hurt.
List of Intentional Torts
- Assault
- Battery
- False imprisonment
- Conversion
- Intentional infliction of emotional distress
- Abuse of process
- Malicious prosecution
Foreseeable consequences
global subrule
Under elements: Intent to Cause Harm or Apprehension of Harm
A defendant is liable for all foreseeable consequences of an intentional tort
Damages (against intentional tortfesor)
An intentional tortfeasor is liable for all damages proximately caused by their conduct, regardless of their knowledge of the victim’s condition.
Because it is intentional tort, P could also recover punitive damages.
a) General damage – pain and suffering
b) Consequential damage - medical
c) Punitive damages - malice, ill will, etc.
Assault
Assault requires a (1) a volitional act (2) done with the intent to cause either (a) harmful or offensive contact or (b) an apprehension of imminent harmful or offensive contact that (3) actually and proximately causes (4) the reasonable apprehension of harmful or offensive contact.
Volitional Act
Element 1 of Assault
A volitional act is conscious muscle movement.
Battery
Battery requires (1) a volitional act (2) done with the intent to cause either (a) harmful or offensive contact or (b) an apprehension of imminent harmful or offensive contact that (3) actually and proximately causes (4) harmful or offensive contact to the person of another.
Offensive Contact
Subrule for Battery
Offensive contact is an objective test - Would society regard the contact as offensive
e.g., offensive contact
- Burglar took her purse, an item closely connected to her personal space.
Harmful Contact
Subrule for Battery
Harmful contact is even the slightest physical change in condition.
e.g. Patron suffered harmful indirect contact because she fainted and suffered a concussion
False Imprisonment
False imprisonment requires (1) an act with intent to confine someone within boundaries fixed by the actor, (2) directly or indirectly resulting in such confinement (3) against the P’s will and (4) the confined person is either conscious of the confinement or harmed by it.
Confinement
Re: False Imprisonment
Confinement includes denial of the means to leave the particular boundaries set by the defendant, as well as threats of immediate force.
– Threat of future harm is not confinement, but threat of immediate or present harm is
– no means of escape
e.g., When Burglar demanded Patron hand over her purse, and pointed the gun at her, Burglar confined Patron: Patron could not move, and thus was confined to the space in which she was standing.
False Imprisonment Defenses
- Shopkeeper Privilege
- Crime Prevention
in discussing false imprisonment, always consider two defenses is relevant; only write the relevant defenses
Shopkeeper Privilege
Re: False Imprisonment Defenses
Defendant can claim the privilege if: (1) they have reasonable grounds to believe a theft has occurred; (2) they hold plaintiff for a reasonable time to ascertain the facts; (3) in a reasonable manner.
Crime Prevention
Re: False Imprisonment Defenses
Private persons may arrest someone if they have a reasonable belief that a crime has occurred that involves breach of the peace.
Breach of peace
Re: Crime Prevention
Breach of peace means creating a disturbance.
Felony
Re: Crime Prevention
Private persons may arrest someone for a felony if they have reasonable belief that the felony has occurred [or been committed], but the felony needs not have been committed in the private person’s presence.
Misdemeanor
Re: Crime Prevention
Private persons may arrest someone for a misdemeanor if they have a reasonable belief that a crime that involves breach of the peace has occurred, and it has been committed in their presence.
Trespass to Chattel/Conversion
Trespass to chattels requires: (1) an act that intermedles or dispossess the other’s personal property, (2) which causes harm to, or the loss of use of, the personal property. Conversion is similar, but its elements are phrased as the interference with plaintiff’s right of possession that is serious enough in result to warrant that defendant pays the full value of the chattel.
Conversion
Conversion is the interference with plaintiff’s right of possession in personal property that is serious enough in result to warrant that defendant pays the full value of the personal property.
Intentional Infliction of Emotional Distress
IIED requires: (1) the defendant’s intentional or reckless (2) commission of acts constitute extreme and outrageous conduct and (3) causes severe emotional distress.
google+ST
Defense for Intentional Tort
not rule = POPCANS
- Privilege
- Defense of Others
- Defense of Property
- Consent
- Authority
- Necessity
- Self-Defense
POPCANS
Defense of Others
D is entitled to defend another from an attack by P to the same extent that a third person would be lawfully entitled to defend himself, but D is liable for a mistake.
Defense of Property
D can use reasonable force to defend real or personal property, including ejecting the person off the property after asking them to leave. D may never use deadly force to protect personal or real property.
Recapture of Chattels
Defense of Property
Defendant may use reasonable, non-deadly force to get back one’s own personal property if:
a) defendant, seeking to recapture, first requests its return or a request would be futile; and
b) D is in hot pursuit.
Express Consent
P affirmatively communicates permission for D to act. But, D’s actions cannot exceed the scope of consent.
Usually a defense for battery and assault.
Implied Consent
A reasonable person interprets P’s conduct as evidencing permission to act.
Whether Consent is Mistaken
Mistake can negate consent when it goes to the consequences or nature of the act.
—
a) E.g.,[undisclosed STD] - Dale and Penny are about to have sex when Penny asks if Dale has any sexually transmitted diseases. Dale knows that he has herpes, but he lies and denies it and then sleeps with Penny without using any protection. Penny gets herpes and sues Dale. Penny will not be deemed to have consented because of Dale’s deception.
b) E.g., [counterfeit bill is not the essence of the deal] - Vivian is a sex worker who engages in sexual relations with Mark. Mark pays Vivian with a counterfeit bill. In this case, there is still consent because the counterfeit bill is a collateral matter.
Authority
- Arrest [Crime prevention], see false imprisonment
- Shopkeeper Privilege, see false imprisonment
- Discipline - Parent/teacher may use reasonable force to discipline a child.
Necessity
D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D’s property.
—
two types:
1. Public Necessity
2. Private Necessity
Public Necessity
D commits intentional tort to protect the public at-large from severe harm.
Public necessity serves as an absolute defense, and a defendant is not liable for any damages caused by his trespass.
Private Necessity
D commits an intentional tort to protect himself. If a reasonable person would believe the action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard. D is not liable for the technical tort but will have to pay for harm D caused.
—
Principle: better to commit tort than risk the consequence
D is not liable for the technical tort but will have to pay for harm D caused.
Self Defense
D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack. There must be an imminent existing threat. Once the threat is over, the defense will not apply.
—
Deadly force cannot be used against non-deadly threat.
Retreat
Self-Defense
a) Some jurisdictions require retreat before using deadly force.
b) One never has to retreat from their own home.
Abuse of Process
rarely tested
Abuse of process involves: (1) using a legitimate process (such as filing a complaint, service, discovery, etc.), (2) for a wrongful purpose, and (3) an act or threat against the plaintiff to accomplish the wrongful purpose. This prohibits the use of any form of process to bring about a result other than that which the process was intended.
Malicious Prosecution
Rarely tested
Malicious prosecution requires: (1) the initiation of civil, administrative or criminal proceedings without probable cause, (2) for a wrongful purpose, and (3) favorable termination of the proceedings on the merits (including a dismissal with prejudice).
Negligence
The five elements of negligence are duty, breach, actual cause, proximate cause, and harm.
Mutliple types of duty
not a rule
- Ordinary duty
- Specialized duties
–Duties of landowner/possessor
–Duty to rescuer
–Duty in emergency
–Professionals (doctors, lawyers, accountants, etc.) - Statutory duty (negligence pe se)
- Children
Children
Minor defendant’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as Defendant would have done. But, children engaging in adult, inherently dangerous activities are held to an adult standard of care
Ordinary Duty
There is a duty to act reasonably towards foreseeable persons under the circumstances and defendant’s conduct is assessed according to a reasonable prudent person.
Tip on Creating the Rule for Ordinary Duty.
- Don’t be general but instead state the circumstances and indicate to whom the duty is owed by Incorporating the standard of care and to whom the duty is owed, without having a separate section on standard of care.
e.g.,
“Defendant had a duty to drive the vehicle reasonably in order to avoid injuring other drivers, pedestrians, or property.”
A person has a duty to act reasonably in interacting with their customers.
A proprietor of an establishment has an ordinary duty to keep their premises safe for customers.
Foreseeable Plaintiffs
not a rule but way of analysis
Re: Ordinary Duty
Plaintiff within Zone of danger –> foreseeable plaintiff
If plaintiff is not a foreseeable plaintiff (not in the zone of danger of negligent act), discuss Cardozo/Andrew split under duty:
1. Cardozo – plaintiff must be in the zone of danger
2. Andrew – [my rule]The plaintiff who was harm was a foreseeable plaintiff, unless the harm was too attenuated from the cause to be foreseeable.
— [MM] focus on the foreseeability of harm/whether harm is too attenuated from cause
e.g.,
Under Cardozo’s analysis, Patron was obviously not in the geographical zone of danger since she was nowhere near Homeowner’s home at the time of the burglary, and thus was not a foreseeable plaintiff in that sense.
Under Andrews’ analysis, foreseeability is an issue of whether either policy or other considerations make the chain of causation too attenuated to be foreseeable.
If the harm is from defendant’s conduct unusual or unexpected –> discuss that as an issue of proximate cause.
Duty to Forsee Criminal Act
Generally, there is no duty to foresee a criminal act unless the breach of duty itself foreseeably increases the risk of the criminal act occurring. (If so, then the duty exists and is adequately foreseeable.)
e.g., leaving unsecure gun in the house at the bedside not uncommon –> break-in and leading theft not foreseeable –> not foreseeable plaintiff
Owners and Possessors of Land to outisde the premise
Generally, a landowner owes no duty to protect someone outside the premises from either natural or artificial conditions on the land.
Trees in the Land
Re: Owner and Possers of Land
There is a duty to maintain trees, so they do not cause harm to persons off the premises.
Artifical Conditions on the Land
Re: Owner and Possers of Land
There are two major exceptions:
1. a duty to protect from unreasonable dangerous artificial conditions and
2. a duty to take precautions to protect people passing by from dangerous conditions.
Landowner’s Duty (within premise)
The liability of landowners and possessors, directly or through their employees, depends on the classification of the person coming onto the land: as invitees, licensees, or trespassers.
Persons on Premise
Re: Owner and Possers of Land
Duty depends on classification of person coming onto land
1. Invitees
2. Licensees
3. Trespassers
Duty to Invitee
Definition and Rule
Re: Owner and Possers of Land
Definition: An invitee is someone on the premises for the business purposes of the land owner or possessor.
Rule: Owner and Possessor holds a duty to an invitee to inspect, discover, repair and protect against known or discoverable dangers only if owner and possessor:
1. Knows or by the exercise of reasonable care, should have discovered, the condition and should realize that it poses an unreasonable risk of harm to invitees; and
2. Should expect that the invitee will not discover or realize the danger or will fail to protect themselves against it.
DRIP - discovery, repair, inspect, protect
could be customers -
—e.g., movie goers and customers to a gas station
Note: even if plaintiff could have done it, doesn’t excuse the defendant from its duty
Duty to Licensee
Re: Owner and Possers of Land
Definition: A licensee is someone on the premises for their own purpose, e.g, social guest, of the land owner or possessor.
Rule: The owner and possessor holds a duty to a licensee to repair and protect against known dangers only if owners and possessor:
1. Knows or has reason to know of the condition and should realize that it involved an unreasonable risk of harm to the licensees and should expect the licensees will not discover or realize the danger;
2. The licensees do not know or have reason to know of the condition or the risk involved; and,
3. Fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk involved.
Note: even if plaintiff could have done it, doesn’t excuse the defendant from its duty
Duty to Trespassers
Re: Owner and Possers of Land
Definition: A trespasser is someone on premises without owner’s or possessor’s consent
Rule: The duty to known trespassers is to adequately warn of non-obvious artificial dangerous conditions maintained by defendant.
Rule: The duty toward unknown trespassers is not to use wanton and willful force.
—
If the possessor knows that a limited part of the land is constantly traversed by trespassers, the possessor will be liable to those trespassers for bodily harm if the artificial condition is one the possessor created or maintains, it is likely to cause death or serious bodily harm, is not likely to be discovered by the trespassers, and the possessors have failed to exercise reasonable care to warn trespassers of the condition and the risk involved.
Attractive Nuisance
duty to child trespassers under LL/possessors duty to trespasser
To assess a duty to prevent harm under the attractive nuisance doctrine, plaintiff must show: (1) the owner is or should be aware that there is a dangerous condition present on the land; (2) the owner knows that young persons frequent the vicinity of the dangerous condition; (3) the condition is likely to cause injury because of the child’s inability to appreciate the risk; and (4) the conditions’s utilities and expense of remedying the situation is slight compared with the magnitude of the risk.
Firefigher’s Rule
The rule bars firefighters/police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by special risks of doing their job or a rescue
Common Carriers Rule
Common carriers, such as airlines and similar modes of travel, have a heightened duty to use the highest degree of care to aid and assist their passengers. It is not strict liability.
Rescuees to Rescuers
A rescuee is liable to a rescuer who is injured in the course of the rescue if the rescuee’s own negligence put them in the position of requiring a rescue.
Subrule: In addition, third parties who foreseeably place rescuers in danger are similarly liable.
duty to rescue or aid
No duty to rescue or aid except:
1. person opts to undertake a rescue, even if he/she doesn’t have a duty to do so, he/she must act reasonably. P may be further protected by Good Samaratian Laws unless reckless or intentional wrongdoing.
2. Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies).
3. [negligent entrustment] When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).
Duty to Control Third Parties
kaplan
There is no duty to control the third party’s conduct to prevent harm to another unless there is a special relationship between D and the third party, which gives the third party a right of protection or imposes a duty on D to control the third party’s conduct.
Rules for Providers of Alcohol
- Traditional Rule: Purveyor [providing alcohol] not responsible for DUI injuries.
- Dram Shop Acts: Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party.
—
These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol.
Duty to Protect
Generally, there is no duty to protect another person from third-party criminal conduct (nonfeasance) unless:
a) Special relationship: landlord/tenant, business/invitee.
b) Some jurisdictions only find duty where there is a special relationship and prior similar incidents, that make the third-party criminal conduct particularly foreseeable.
Governmental Entity Defenses
D is Governmental Entity: Whether the govt has a duty depends on function.
1. Proprietary Function (acting in a private area): Treated as any other D for duty analysis.
- Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty.
- Ministerial Function: (route responsibilities – stamp the paper)
a) Duty once the government has undertaken to act
b) Ex: stop sign installed incorrectly leading to accident. - Public Duty Doctrine: Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when:
a) there is a special relationship between P and the agency; or
b) the agency has increased the danger beyond what would otherwise exist.
Duty Based on Custom
Custom or usage in an industry or trade may be introduced as evidence of a duty or lack of duty.
Professional Standard
- Medical malpractice: Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community.
a) specialists - national standard
b) general practioner - local standards - Lawyers, Architects, Accountants: So long as the professional complies with custom, the professional cannot be found to have breached their duty - deviation from custom means breach of that duty.
Exceptions: court may reject customs that are outdated and/or unreasonable.
Lack of Informed Consent
- Traditional (battery): Physician is liable for battery if no informed consent about risks. Lack of disclosure negates a patient’s case. Doctor is liable if there is a gross deviation from actual consent. (ex: P agrees to tonsillectomy, but leg is amputated instead).
- Traditional (negligence): (professional rule) - Physician must divulge risks that are customarily divulged by a physician in the similiar circumstances
- New Trend – Standard of Materiality: (patient rule) - Physician must divulge all material risks, which means risks that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment.
Negligent Infliction of Emotional Distress
under negligence analysis - duty
Generally, there is no duty to prevent emotional distress in the absence of physical harm and plaintiff must usually be within the zone of danger from the negligence and suffer physical symptoms from the emotional distress.
Three exceptions to bypass zone of danger and physical harm requirements are:
1. Plaintiff and victim were closely related, the Plaintiff was present (at the scene), and Plaintiff perceived the injury;
2. Duty arises from special relationship between the plaintiff and defendant, so that the negligence has great potential to cause emotional distress; or
3. Defendant mishandle relative’s corpse or Erroneously states that relative has died.
e.g., special relations - doctor-patient
