Tort Flashcards
How damage of property is measured for torts of nuisance, trespass, negligence, or tort of waste:
(1) the decline in market value of the property (measured from immediately before tort and after); or (2) cost to restore the property to its previous condition. WHICHEVER IS LESS
Nuisance
- A substantial and unreasonable interference with a person’s use and enjoyment of her land.
- substantial - must be offensive, annoying, or inconvenient to the average person in the community
- unreasonable - severity of P’s injury outweighs utility of D’s conduct
Defamation - elements
Defamatory Statement
Concerning P
Publication - intentionally or negligently to third party
Harmful to P’s Reputation
**falsity and fault for matters of public concern
Defamation - proving damages
- depends on whether libel (written) or slander (spoken)
- Libel - P doesn’t need to prove special damages
- Slander - P needs to prove special damages (specific economic loss). Except for Slander per se where damages are presumed
Defamation - Slander per se
Slander per se - don’t need to prove special damages. CLAMS
C - statement that P committed a serious CRIME
L - current LOATHSOME disease
A - statements reflecting ADVERSELY on business profession
M - crimes of MORAL turpitude
S - serious SEXUAL misconduct
Defamation - additional element for matters of public concern
*must prove falsity and fault
Private figure - negligence
Public figure/official - actual malice - statement made with actual knowledge of the statement’s falsity or with reckless disregard as to whether the statement was false
Defamation - defenses
- truth
- privilege (qualified or absolute)
- for qualified you need to show malice
Transferred Intent Doctrine - applies to
Battery, assault, trespass, false imprisonment
Assault
(1) Attempted Battery; or
(2) Act by D causing a reasonable apprehension in P of imminent harmful or offensive contact to P’s person
- intent, causation
- apprehension must be reasonable but its ok if impossible for D to actually hit P
- threats of future battery not enough
Battery
Intentional harmful or offensive contact to P’s person by D.
A prima facie case of battery is established when the P shows that she suffered harmful or offensive contact and that the D intended to cause such contact.
conduct is offensive if it offends a reasonable sense of personal dignity.
- reasonable standard for whether harmful/offensive
- no injury necessary
- can happen with the P is asleep
- defenses: consent, self defense
Defense to Intentional Torts - Self Defense
- Reasonable use of force the D reasonably believed necessary to protect himself or another from an imminent tort.
- mistake ok if above was reasonable
- no duty to retreat
False Imprisonment
An act or failure to act by D resulting in P’s restraint or confinement to a bounded area.
an actor is subject to false imprisonment of another if he acts intending to confine another within boundaries or a confined area fixed by the actor, his actions result in such a confinement, and the other is conscious or harmed of it.
- can be privileged if its necessary for safety but this must be reasonable
- duration doesn’t matter
- threats ok for confinement
- no reasonable means of escape that P is aware of
Intentional Infliction of Emotional Distress
Extreme and outrageous conduct by the D causing “s severe emotional distress.
- conduct that exceeds the bounds of decency in society
- non outrageous conduct can be actionable if: D targets P’s known sensitivities, continuous and repetitive conduct, P is member of fragile class, D is common carrier or innkeeper
Negligent Infliction of Emotional Distress
- P must have been in “zone of danger” – a near miss
- D’s negligence resulted in P’s emotional distress
- physical manifestation of emotional distress (can be instant or days later)
Most states - Claims for distress resulting from accidents involving others - closely related to the injured, was near the scene, and suffered shock from the sensory and contemporaneous observation of the D’s actions
Bystanders of Intentional Torts
- must have seen the event happen
- D must have been aware the the bystanders presence so that the impact on the bystander was forseeable
- physical symptoms not needed for close family members byt needed for third parties
Intentional Torts to Tangible Property - Conversion/Trespass to Chattel
D’s interference with with P’s right to use, possession, enjoyment of personal property.
Conversion - substantial interference - justifies paying full market value at time of conversion
Trespass to Chattel - some interference. P can recover cost of repair, rental value
Trespass
Physical Invasion of P’s real property by D without permission, justification or privilege.
Intentional - no damages needed
Reckless/negligence/result of abnormally dangerous activity - need damages
Tortious Interference with a Contract
KID
K - D had knowledge of the agreement
I - Intentionally induced its breach
D - damages resulted
**can’t occur if it was an illegal K or where there was some fiduciary relationship with the interfering party and the breaching party
Invasion of Privacy
Involves a person’s right to be left alone from highly offensive invasions of privacy. Damages assumed.
CLIP
C - COMMERCIAL misappropriation of another’s name without permission to gain commercial advantage. Majority says terminates on celebrity’s death
L - placing P in highly offense false LIGHT before the public
I - intentional and highly offensive INTRUSION into the P’s seclusion or solitude (repeated phone calls, wiretaps)
P - public disclosure of highly offensive deeply shocking PRIVATE facts involving P that aren’t of public concern and not in public records
Strict Tort Liability
P just needs to show injury was caused by A-SWAN
A - ABNORMALLY dangerous activity
S - STRICT products liability
W - WORKERS comp
A - ANIMALS - wild, or domestic where D knew animal was vicious or possessed vicious propensities
N - NEGLIGENCE per se
Negligence - elements
Duty
Breach of duty
Causation (actual and proximate)
Damages
objective standard - whether D acted as a reasonably prudent person under similar circumstances
duty of reasonable care to avoid foreseeable harms
In a negligence action, the plaintiff must show that the D owed him a duty to conform his conduct to avoid unreasonable risk of harm to others, that his conduct fell below that standard, which was the direct and proximate cause of the plaintiffs injuries
Causation
Actual Cause (Cause in Fact) - “but for” test, substantial factor
Proximate Cause - P’s injury was a natural and probably consequence (foreseeable) of the D’s act.
res ipsa loquitur
- probability exists (more likely than not) that neither the P nor anyone other than D caused the injury
- instrumentality/area causing injury was in D’s exclusive control
- type of injury that usually wouldn’t occur absent negligence by someone in D’s position
negligence per se
violation of a statutory safety standard of care is negligence per se - conclusive presumption of negligence
- D’s violation of the safety statute proximately caused P’s injuries
- P was a member of the class of persons the statute was designed to protect
- Harm to P was the type of harm the statute was designed to protect against
Negligence per se
**situations where doesn’t apply even though D violated statute
- even with diligence and care D couldn’t have complied with it
- D acted in an unanticipated and sudden emergency
- violating statute was safer than complying with it
contributory vs. comparative negligence
Contributory - bars recovery for P if even 1% at fault (P can rebut with “last clear chance”)
**Pure Comparative - P can still recover even if any percentage at fault, its just reduced by that amount - assume for MBE if nothing else noted
Modified Comparative- P can only recover if less than 50%
Assumption of the Risk
D can deny P’s recovery by showing P assumed the risk. elements:
(1) P knew or should’ve known the risk (objective)
(2) P voluntarily proceeded in the face of the risk
Duties owed to Trespassers/Licensees/Invitees
Trespassers - only to known/foreseeable trespassers. owe a duty to warn against known man-made latent dangerous conditions
Licensees (house guests) - warn against known latent dangerous conditions
Invitees (public place visitors or hired help) - known or should’ve known of latent dangerous conditions. adds a duty to inspect
Strict Products Liability - elements
- D manufactured, regularly sold, or was a commercial lessor of the product
- product was DIM defective
- defect proximately caused P’s injury
- the defect existed when it left D’s hands
**contributory negligence is not a defense
Strict Products Liability - types of defects
DIM
- Design - danger outweighs utility. P must show hypothetical alternative design. safer but comparative cost and purpose
- Inadequate Warning - needs to adequately warn about non obvious dangers. needs to warn against foreseeable misuse
- Manufacturing - departs from intended design making it more dangerous. P must show failed to perform as safely as ordinary consumer would expect
Duty to Rescue
- Generally there is no duty to rescue.
- Exceptions: the actor’s activity put the person in peril, where there exists a special relationship (parents/children) OR when the person voluntarily undertakes the task to rescue - in this case they now owe a duty to act as a reasonably prudent person to carry out the rescue
Legal Malpractice - must show:
- the lawyer failed to exercise reasonable skill and competence
- but for the attorney’s malpractice, the client would’ve prevailed
