Tort Law Flashcards
Elements of the attractive nuisance doctrine
1) there’s an artificial condition on land
2) the landowner knows or should know that children are likely to trespass on the land
3) the landowner knows or should know that the artificial condition poses a significant risk to children
4) the children don’t appreciate the danger of the artificial condition
5) the landowner fails to exercise reasonable care to protect the children from the artificial condition
6) the utility of the condition is outweighed by the risk it poses to children
Elements of battery
1) defendant intentionally inflicts (requires that the defendant intend to touch the plaintiff)
2) a harmful or offensive touching
3) onto the plaintiff’s person
elements of false imprisonment
1) defendant intends to confine plaintiff to a limited area
2) defendant causes the defendant’s confinement, or defendant refuses to release plaintiff from confinement despite owing a duty to do so
3) plaintiff is conscious of the confinement
elements of trespass to land
1) defendant intentionally (only requires the intent to do the act that entered the land, not the intent to trespass)
2) entered onto another person’s land
What is the necessity defense?
An affirmative defense to property torts where a person enters another’s land/uses their property to prevent serious harm
Are damages available even if the defendant acted under necessity defense?
Yes, as to actual damages such as personal injury or property damage. Plaintiff cannot collect punitive or nominal damages though.
what is the difference between private necessity and public necessity?
Private necessity is when the trespasser uses/intrudes onto another’s property in order to protect a specific person from serious harm.
Public necessity is when the trespass happens in order to protect a large number of people from some public calamity
What is the traditional approach to contributory negligence?
If the plaintiff is at fault for the damages even a little bit, it’s a total bar from recovery
What is pure comparative negligence/fault?
A party’s available damages are calculated based on how at fault they were. The percentage they were at fault is deducted from the potential damages.
ex. $10k in damages but plaintiff was 40% at fault and defendant 60%. The defendant is therefore liable for $6k in damages, because the plaintiff’s amount (4k) is reduced from the 10k to give you the amount the defendant is liable for.
What is modified comparative fault/negligence?
If the plaintiff is more at fault than the defendant (greater than 50%), they cannot recover damages.
ex. $10k in damages. Plaintiff is 60% at fault and defendant 40%. Plaintiff cannot recover any damages
elements of intentional infliction of emotional distress
1) defendant intends to cause distress or acts in reckless disregard as to the risk of distress
2) defendant commits extreme or outrageous conduct that exceeds human decency
3) the conduct causes the plaintiff to feel severe emotional distress
elements of negligent infliction of emotional distress
Same as IIED except that it only applies in certain circumstances:
1) the plaintiff was within the zone of danger and suffered emotional distress
2) the plaintiff was closely related to the victim and was physically present and witness to the outrageous conduct and injury
3) the plaintiff has some special relationship with the victim, such as negligent mishandling of a corpse or improper medical diagnosis
elements of negligence
1) defendant owed plaintiff a duty of care (typically a reasonable duty of care)
2) defendant breached that duty of care
3) defendant’s action was the actual and proximate cause of the plaintiff’s injuries
4) the plaintiff suffered damages of some sort (no pure economic loss in negligence)
what is the difference between actual causation and proximate causation?
Actual causation is a but for test. But for the defendant’s conduct, would the injury have occured?
Proximate causation is a foreseeability test. Was the injury suffered within the scope of the defendant’s conduct? Was it foreseeable that the defendant’s conduct would’ve caused such an injury?
What are the three strict liability torts?
1) Abnormally dangerous activities
2) Wild animals
3) Product defects
elements of negligence per se
1) a statute imposes some legal duty
2) defendant violates the statute
3) plaintiff was in the class of people the law intended to protect
4) the harm caused was the kind the statute was designed to address
Defenses to negligence per se
1) Impossible/emergency: compliance with the statute was impossible at the time or an emergency necessitated violating the statute
2) compliance with the statute was more dangerous than violating it
3) vagueness
4) physical disability rendered defendant incapable of complying
5) defendant made reasonable efforts to comply with the statute but still ended up violating it
elements of fraud
1) false representation of a material fact 2) defendant knows the representation is false or acts in reckless disregard as to its falsity 3) defendant intends to induce the plaintiff to act in reliance on the false info 4) the misrepresentation causes the plaintiff to act or refrain from acting 5) the plaintiff’s reliance on the misrepresentation was justifiable
6) plaintiff suffered monetary/pecuniary loss
elements of negligent misrepresentation
1) defendant provided false info to plaintiff
2) falsity was due to defendant’s negligence in preparing the info
3) Occurred during the course of a business/profession
4) plaintiff justifiably relied on info
5) plaintiff suffered pecuniary loss
6) plaintiff and defendant were in some sort of business/contractual relationship
elements of interference with a contract
1) valid contract existed between plaintiff and 3rd party
2) defendant knew about this contract
3) defendant intentionally interfered with the contract
4) a breach resulted
5) plaintiff suffered damages due to the breach
elements of defamation
1) defendant published a false statement
2) statement was about the plaintiff
3) statement was communicated to a third party
4) plaintiff suffered reputation damages due to the statement
What are the 4 kinds of invasion of privacy torts?
1) Invasion of seclusion
2) False light portrayal
3) Appropriation of someone’s likeness
4) Public Disclosure of private facts
Is defamation different when the plaintiff is a public figure?
yes. There is an additional element that the defendant must have acted with actual malice (knew the statement was false or acted in reckless disregard)
Is there an affirmative duty to help others in need?
No, unless one of the special relationships exists
Is a defendant liable for injuries their rescuer suffers when rescuing them?
Yes, the defendant can liable under negligence. A rescuer can recover damages for injuries they sustained while trying to rescue another if that person’s peril or rescuer’s peril was created by the defendant’s negligent conduct
What is the firemen’s rule?
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.
Can a private person citizen’s arrest someone without being liable for false imprisonment?
Yes. A private person can use force to arrest someone if 1) the arrestor witnessed the person commit a felony and 2) the arrestor has reasonable grounds to believe the person they’re arresting committed that felony
what is the doctrine if res ipsa loquitur?
A doctrine that allows a plaintiff to prove negligence using circumstantial evidence.
If a plaintiff can prove 1) the accident was a kind that doesn’t normally occur in the absence of negligence, 2) the accident was caused by an agent/instrument in the exclusive control of the defendant, and 3) the accident wasn’t caused by any actions of the plaintiff’s
How do prove intrusion upon seclusion?
the defendant intruded upon the plaintiff’s private affairs in a way that would be highly offensive to a reasonable person
How to prove false light?
defendant 1) makes public facts about the plaintiff 2) that place the plaintiff in a false light 3) which would be highly offensive to a reasonable person
how to prove appropriation of likeness
1) defendant appropriates plaintiff name and/or likeness 2) for the defendant’s advantage 3) without plaintiff’s consent 4) plaintiff suffers injury
how to prove public disclosure of private facts
1) defendant publicizes a matter concerning another’s private life 2) the matter publicized is not of public concern 3) the matter publicized is highly offensive to a reasonable person
What is trade libel
When a defendant makes false and derogatory statements that harm a plaintiff’s business or products
what is slander of title?
when a defendant makes false and derogatory statements that harm or call into question a plaintiff’s ownership of real property
What are the 6 situations where a person has an affirmative duty to act?
1) placing another in peril
2) assumption of duty
3) contractual obligation
4) authority: when someone has actual authority to control another (parent/child, employer/employee)
5) by statute
6) special relationship (common carriers, innkeepers, etc.)
How does product misuse affect a product liabilities suit?
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 the manufacturer’s liability.
Can children be held liable for torts?
For intentional torts: yes, if they act with the required intent
For negligence: the standard of care they owe is based on a reasonable child of similar age and experience standard.
Also, children are held to an adult standard if they’re engaging in adult activities.
Can a parent be liable for the tortious actions of their child?
Yes, a parent can be liable for negligence if they fail to use reasonable care to stop their child from causing foreseeable harm to others (ex. parent knows their kid is violent towards others but still puts the kid in a room full of toddlers)
They can also be vicariously liable if the child acts as their agent or state statute imposes special liability on the parent.
When is someone strictly liable for a wild animal?
If the wild animal
1) directly harms someone using its abnormally dangerous characteristics, or
2) if the harm is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal
Is someone strictly liable for harms caused by their domesticated animals?
Yes, if the animal has a dangerous propensity that the owner knew about.
For purposes of an intentional infliction of emotional distress claim, are verbal insults, threats, or indignities considered extreme and outrageous conduct enough to give grounds for an IIED suit?
No
