tort Flashcards
Intent for battery exists when the defendant
(1) intends to cause contact with the plaintiff’s person,
(2) intends to cause contact with a third party but instead causes contact with the plaintiff, or
(3) intends to commit an assault but instead commits a battery.
Apparent consent is a defense to battery when
consent can be reasonably implied from the plaintiff’s conduct or from custom.
consent is only a defense where
the defendant’s conduct falls within the scope of the plaintiff’s consent.
A defendant who has permission to use the plaintiff’s chattel commits conversion when he/she
(1) intentionally uses the chattel in a way that exceeds the scope of permission and
(2) seriously violates the plaintiff’s right to control the chattel.
The defendant is liable for the fair market value of the chattel at the time of
the conversion.
For intentional infliction of emotional distress, conduct is considered extreme and outrageous if
it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
In most jurisdictions, an innkeeper owes a duty to
use ordinary care to protect its guests while they are on the premises.
Evidence that the innkeeper complied with (or deviated from) community or industry custom is
relevant to—but not conclusive on—the issue of negligence.
Under the common-law approach to common-carrier liability, common carriers owe
the highest duty of care to their passengers and can be liable for slight negligence.
Under the modern approach, common carriers only owe a duty to use
reasonable care to protect passengers from harm that arises within the scope of that relationship.
In traditional contributory negligence jurisdictions, a plaintiff’s failure to use reasonable care for his/her own safety is
a complete defense to negligence.
The defendant can establish the plaintiff’s negligence under the doctrine of negligence per se, but still must prove that
the plaintiff’s negligence proximately caused the plaintiff’s harm.
A land possessor owes a duty to known or anticipated trespassers to
(1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and
(2) use reasonable care in active operations.
Under the traditional standard for res ipsa loquitur, negligence is inferred if
(1) the plaintiff’s harm would not normally occur unless someone was negligent,
2) the defendant had exclusive control over the thing that caused the harm, and
(3) the plaintiff did nothing to cause the harm.
Where multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm, the test for actual causation is
whether the defendant’s conduct was a substantial factor in causing the harm.
Strict products liability claims can be brought against
commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff.
service providers are not subject to
strict products liability.
Strict products liability is imposed on any commercial seller in the chain of distribution if
(1) the commercial seller’s product contained a defect when it left the commercial seller’s control and
(2) that defect caused the plaintiff harm.
The owner of a wild animal is strictly liable for harm that is caused by
a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or directly results from the wild animal’s abnormally dangerous characteristics.
Under pure comparative negligence, a negligent plaintiff’s recovery is reduced by
his/her proportionate share of fault.
Under pure comparative negligence, if multiple defendants cause the plaintiff indivisible harm:
several liability limits the plaintiff to recovering from each defendant the portion of damages that corresponds to his/her proportionate share of fault.
Under modified (or partial) comparative negligence, recovery is reduced by
the plaintiff’s percentage of fault and barred if it exceeds 50%.
A plaintiff who is public figure or official can recover for defamation only if
the plaintiff proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with knowledge or reckless disregard of the statement’s falsity.
A commercial seller owes a duty of reasonable care to
any foreseeable plaintiff (i.e., purchaser, user, bystander).
a commercial seller’s duty of reasonable care to any foreseeable plaintiff is breached when:
the commercial seller fails to exercise reasonable care in the inspection or sale of the product and the defect would have been discovered had such care been used.
Assumption of the risk is a defense that applies when
the plaintiff knew of a risk yet voluntarily exposed him/herself to it.
A plaintiff must be in privity with the defendant to have standing in
a products liability action based on breach of warranty
Exclusive control is an element of res ipsa loquitur, which allows
the defendant’s negligent conduct to be inferred when the plaintiff lacks direct evidence of such negligence.
manufacturer can rebut an inference of negligence by showing that
it exercised reasonable care
A defendant is liable for conversion if
he intentionally commits 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 of the use of the chattel.
Accidentally damaging the plaintiff’s chattel is not conversion if
the defendant had permission to be using the property
The defendant must only intend to commit the act that interferes; intent to cause damage is
not necessary
A defendant is subject to liability to the plaintiff for the intentional infliction of emotional distress if
the defendant by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the plaintiff.
Under a negligence theory, failure to exercise reasonable care in the inspection or sale of a product constitutes
breach of duty.
plaintiff must establish not only that the defect exists, but that had the defendant exercised reasonable care in the inspection or sale of the product
the defect would have been discovered, and the plaintiff would not have been harmed.
A foreseeable intervening cause, such as the negligence of a rescuer,
will not cut off a defendant’s liability
As a general guideline, negligent intervening acts are usually regarded as
foreseeable and do not prevent the original defendant from being held liable to the plaintiff.
Negligence per se occurs when
a defendant violates a criminal or regulatory statute that imposes a specific duty on the defendant, and the act proximately caused the kind of harm the statute was designed to prevent.
Negligence per se plaintiff must be
in the class of people intended to be protected by the statute.
A failure-to-warn defect exists if
there were foreseeable risks of harm not obvious to an ordinary user of the product, and those risks could have been reduced or avoided by providing reasonable instructions or warnings.
The failure to include the instructions or warnings must render the product
not reasonably safe
Under the attractive nuisance doctrine, a land possessor may be liable for injuries to children trespassing on the land if:
: i) an artificial condition exists in a place the land possessor knows or has reason to know children are likely to trespass;
ii) the owner knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
iv) the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and
v) the landowner fails to exercise reasonable care to protect children from the harm.
To prevail on a claim for strict products liability based on a manufacturing defect, the plaintiff must prove that:
(i) the product was defective,
(ii) the defect existed at the time the product left the defendant’s control, and
(iii) the defect caused the plaintiff’s injury when the product was used in an intended or reasonably foreseeable way.
While misuse of a product is not an automatic bar to recovery, the particular misuse must be
foreseeable.
In most jurisdictions, a minor child can be held liable for an intentional tort if the child acts with the requisite mental state—i.e.,
(i) with the purpose of causing the consequences of the child’s act or
(ii) knowing that the consequence is substantially certain to result.
A defendant is subject to liability to the plaintiff for battery if
the defendant intended to cause contact with the plaintiff’s person and the defendant’s affirmative conduct caused contact that was harmful or offensive to the plaintiff.
The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if
the component itself is defective, but not when the component is incorporated into a product that is defective for another reason.
the commercial supplier of a component may be liable if that supplier substantially participates in
the process of integrating the component into the design of the assembled product and that product is defective due to the integration.
A private nuisance is
a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.
for private nuisance claim, a person with special sensitivities can recover only if
the average person would be offended, inconvenienced, or annoyed.
In order to recover under a strict products liability theory, a plaintiff must prove that
the product was defective (in manufacture, design, or failure to warn), the defect existed when it left the defendant’s control, and the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer
typically negates liability.
To recover under a theory of the public disclosure of private facts about someone, the plaintiff must show that
(i) the defendant gave publicity to a matter concerning the private life of another, and
(ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.
A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that:
(i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and
(ii) the threat of physical impact caused emotional distress.
duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is
a special relationship between the plaintiff and the defendant.
possible for a defendant to inflict severe emotional distress that results in physical symptoms without the threat of physical impact, such as when
a physician negligently misdiagnoses a patient with a terminal illness that the patient does not have, and the patient goes into shock as a result
Generally, a plaintiff can recover for negligent infliction of emotional distress only if
the defendant’s action causes a threat of physical impact that results in some kind of bodily harm (e.g., a heart attack).
exception to the physical-injury requirement in cases of
misinforming someone that a family member has died
In most jurisdictions, a private actor (i.e., an individual who is not an on-duty law enforcement officer) is privileged to use force (e.g., commit a battery or false imprisonment) to make an arrest in the case of a felony if
the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.
“citizen’s arrest,” is recognized if
the private actor makes a reasonable mistake as to the identity of the felon but not as to the commission of the felony.
A wild animal is an animal that is
not by custom devoted to the service of humankind in the place where it is being kept
The possessor of a wild animal is
strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, as long as the plaintiff did not knowingly do anything to bring about the injury and the harm arises from a dangerous propensity that is characteristic of such wild animals or of which the owner has reason to know.
A defendant is liable for
the reasonably foreseeable consequences resulting from his conduct
The type of harm must be foreseeable, and a defendant’s liability is limited to
those harms that result from the risks that made the defendant’s conduct tortious.
Traditionally, a plaintiff’s voluntarily encountering a known, specific risk is an
affirmative defense to negligence that affects recovery
Most courts hold that the voluntary encountering must also be
unreasonable
Examples of unforeseeable superseding causes include
extraordinary acts of nature (“act of God”), criminal acts, and intentional torts of third parties.
normal forces of nature, including rain, are considered
foreseeable intervening causes, and will not limit the defendant’s liability
A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that
i) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant,
(ii) the defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint, and
(iii) the defendant can safely prevent the peril only by the immediate use of deadly force.
In general, a duty of care is owed to
all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
Unlike actions for intentional torts, nominal damages are not recoverable in
negligence actions
a plaintiff who suffers only economic loss without any related personal injury or property damage
cannot recover such loss through a negligence action because a defendant does not have a general duty to avoid the unintentional infliction of economic loss on a plaintiff.
A person is an employer if
the person has the right to control the means and methods by which another performs a task or achieves a result.
An employer is liable for the tortious conduct of an employee that is
within the scope of employment
If the plaintiff in a defamation action is either a public official or a public figure, then the plaintiff is required to prove that the defendant acted with actual malice; that is,
he either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement
