Tort Law Flashcards
Tort Defined:
a) A civil wrong, other than breach of contract, for which the law provides a remedy.
b) A civil wrong, wherein one’s person’s conduct causes a compensable injury to the person, property, or recognized interest of another, in violation of duty imposed by law.
Common Elements of Torts:
a.) Someone has sustained a loss or harm as a result of some act of failure to act by another.
b.) Liability based on fault:
1. Intentional (Highest level of fault)
2. Negligent
3. Liability without Fault (Strict Liability)
Burden of Proof in Tort Law:
1) Always falls on the plaintiff.
a. Defendant need not to prove defendant
acted without fault.
b. Plaintiff must prove defendant's lack of
due care.
Degree of Proof in Tort Law:
1.) By a preponderance of evidence
2.) 50% +
3.) More likely than not the person did it.
Intentional Torts (7 torts: 4 against person, 3 against property)
1.) Persons: assault, battery, false imprisonment, and intentional infliction of emotional distress
2.) Property: trespass to land & trespass to chattel and conversion
The “Act” In torts:
Act by the defendant– Must be volitional act or movement.
(An act of defendant’s will-Required in every type of tort.)
Intent: Person Torts
- Defendant desires result, or defendant knows with substantial certainty that the result will occur.
Intent: Property Torts
- Defendant desires to do the act, or defendant knows with substantial certainty that the act will occur.
Intent Facts in Torts:
1) Highest level of fault in torts is intent.
2.) Minors are liable for their intentional torts
as long as they have the requisite intent.
3.) Insane persons are liable for their
intentional torts as long as they have the
requisite intent.
4.) Intoxicated persons are liable for their
intentional torts as long as they have
requisite intent.
5.) Mistake persons are usually liable for
their intentional torts.
Transferred Intent:
Definition: When defendant intends to commit one tort, but instead (or in addition to) commits a different tort to the same plaintiff, and/or commits the same and/or different tort to a different plaintiff, then the intent will transfer to the resulting tort.
Transferred Intent Elements:
1) Requisite Intent can be transferred from one plaintiff to another or from one intentional tort to another
2) Tort intended and tort committed must either be assault, battery, false imprisonment, trespass to land, or trespass to chattel. (Old action for trespass)
3) NO transferred intent for intentional infliction of emotional distress.
Causation:
1) Defendant’s act or force set in motion by defendant must have caused the result or;
2) Defendant’s act is a substantial factor in brining about the results
Damages:
Actual damages are not required for battery, assault, or false imprisonment.
Battery (Intentional Tort to Person)
Definition: Act by defendant that intentionally causes a harmful or offensive contact with a plaintiff’s person.
a. Intent to cause harmful/offensive contact
with plaintiff’s person
b. Causation:
1. Direct: contact with plaintiff
2. Indirect- time passes between defendants’
act and contact to plaintiff.
d. Harmful or Offensive- judged by reasonable
person standard.
e. Plaintiff’s person can include physical body,
clothing, and anything closely connected to
the plaintiff.
Assault (Intentional Tort to Person)
Definition: Act by the defendant that intentionally causes reasonable apprehension in plaintiff of immediately receiving a battery.
a. Intent to cause apprehension.
b. Immediate Battery-Not future
c. Reasonable Apprehension:
1. Judged by reasonable person standard
2. Apprehension does not equal fear
3. Words alone are insufficient & must be
coupled with action.
False Imprisonment (Tort against person)
Definition: Act by defendant that intentionally causes the plaintiff to be confined to a bounded area.
a. Intent to confine plaintiff to bounded area.
b. Time of concealment need only be
appreciable amount of time.
c. Future threats and moral pressure are
insufficient
d. Plaintiff must be aware of confinement
unless plaintiff is injured by the confinement.
False Imprisonment- Types of Confinement
1) Physical Barriers
2) Physical Force
3) Threats of Force
4) Failure to release or;
5) invalid use of legal authority
Bounded Area:
(1) Movement restrained in all directions with no reasonable means of escape.
Intentional Infliction of Emotional Distress (Tort Against Person)
Definition: extreme and outrageous conduct by defendant that intentionally or recklessly causes severe emotional distress in plaintiff. (This will require damages, that someone has suffered severe emotional distress in order to recover)
Intentional Infliction of Emotional Distress-Conduct
1.) Conduct
a. Conduct that transcends to all bounds of
decency
b. Conduct short of extreme & outrageous if
directed toward:
(1) Children
(2) Elderly Persons
(3) Pregnant woman or;
(4) Supersensitive person if sensitivity is
known to defendant.
c. Or committed by particular type of
defendant: Common carriers (cab driver,
flight attendants) or Inkeepers (hotels,
etc.)
Intentional Infliction of Emotional Distress- Damages
(1) Need actual damages-severe emotional distress
(2) Nominal damages are insufficient (technical difficulty in court, money to file the suit, the service, etc.)
(3) Third party may recover for injuries by defendant causing physical harm to another if:
(a) Person & Victim closely related
(b) Plaintiff is present at scene
(c) Defendant knows of a & b ^
Trespass to Land (Property Tort)
Definition: an intentional act by defendant that causes a physical invasion of plaintiff’s land.
Trespass to Land- Elements:
1) Intent:
a.) Intend the act that causes entry to the
land
b.) Not liable for non-volitional acts
2) Causation:
a.) Actual causes is all that is required.
b.) Liable for all harm causes, however
unforeseeable.
3) Physical Invasion:
a.) Direct or Indirect invasion by defendant
b.) Failure to leave or remove.
4.) Plaintiff:
a.) Right to possession is insufficient
b.) Ownership not required.
5.) Land:
a.) Common Law: all spaces from center of
the earth to the heavens.
b.) Modernly: all reasonable usable space
damages. Damages are inferred Nominal
damages will be rewarded. All other
provable damages are recoverable.
Trespass to Chattel (Property Tort)
Definition: an intentional act by defendant that causes an interference with plaintiff’s possessory interest in chattel.
Chattel Definition: all tangible property, any tangible property that has been reduced to tangible form.
Examples: Vehicles, jewelry, equipment, furniture, machinery, livestock, clothing, etc.
Trespass to Chattel Elements:
(1) Intent:
a. Intent the act that causes the
interference with the necessary
possessory interest.
b. Not liable for non-volitional acts
(2) Causation- Actual Cause
(3) Interference:
a. Intermeddling-damage to chattel
b. Dispossession-taking someone’s chattel
(4) Plaintiffs Possessory Interest
a. right to possession is sufficient and
ownership is not required.
(5) Damages-not inferred-actual damage must be proven, loss of possession will be considered an actual harm
Conversion (Property Tort)
Definition: An intentional act by the defendant that causes an interference with plaintiff’s possessory interest in chattel so severe as to warrant a forced sale.
Conversion Elements:
(1) Intent:
a. Intent the act that causes the interference
with the possessory interest.
b. Not liable for non-volitional acts (muscle
reflex resulting in accidently injuring
someone)
(2) Causation- Actual cause
(3) Severe Interference:
a. Destruction, severe damage or material
altercation to chattel.
b. Dispossession
1. Wrongful accusation, wrongful transfer
or missing chattel.
(4) Plaintiff’s Possessory Interest: right to possession is sufficient, ownership not required.
(5) Remedies:
a. Damages-Fair market value at time of
conversion
b. Return to Chattel by replevin
Defenses to Intentional Torts
- Consent
- Self-Defense
- Defense of Others
- Defense of Property
- Recovery of Property
- Shop Keeper’s Privilege
- Necessity
- Authority of Law-Privilege of Arrest
- Discipline
Consent (Defense to Intentional Torts)
Two Types: express and implied
Express Consent v. Implied Consent
(1) Express Consent: written out consent
( ex: doctor disclosure forms, etc.)
(2) Implied Consent: Apparent Consent
a. Implied in Fact- a reasonable person
would have inferred from custom &
usage, or from plaintiff’s conduct.
b. Implied in Law- action necessary to save
plaintiff's life (medical necessity)
(1) Plaintiff is injured, unconscious or
unable to grant consent, and no
close relative present to give it
(2) An immediate decision necessary.
(3) There is no reason why plaintiff
wouldn't have given consent
(4) A reasonable person in plaintiff's
position would have given
consent.
Consent: (Capacity to Consent)
(1) Must have mental capacity to consent
(2) Mentally incompetents are incapable of consent
(3) Intoxicated persons are incapable of consent
(4) Very young children are incapable of consent
(5) Consent by fraud or duress- invalid consent
(6) Consent to Crimes-cannot consent to serious crimes.
(7) Exceeding scope of consent-defendant will be liable if defendant goes beyond act consented to or does something substantially different.
Self-Defense (Defenses to Intentional Torts)
Definition: When a defendant has a reasonable belief that a tort is about to happen to his person, he may use reasonable force to prevent harm.
Self-Defense Elements:
(1) Reasonable Belief-apparent necessity
(2) Reasonable mistake is allowed
(3) Retaliation is not allowed
(4) Not available as a defense for initial aggressor
(5) No liability for accident injury to 3rd parties
(6) Force allowed- that which reasonably necessary to prevent harm
(7) Retreat:
a. Majority Rule: there is no duty to retreat.
b. Minority Rule: retreat if possible, to
perform safely or not in your own home.
Defense of Others (Defenses to Intentional Tort)
(1) Definition: when defendant has a reasonable belief that a tort is about to happen to an innocent third-party, he may use reasonable force to prevent such harm.
(2) Reasonable Belief- apparent necessity
(3) Force allowed- that which reasonably seems necessary to prevent harm if the injury was threatening the defender.
(4) Reasonable mistake is allowed
Defense of Property (Defenses to Intentional Tort)
(1) Definition: when defendant has a reasonable belief that a tort is about to happen to his property, he may use reasonable force to prevent such harm.
(2) No deadly force allowed
(3) Request to desist must precede use of force.
Recovery of Property (Defense to Intentional Tort)
(1) Timely demand is required
(2) Recovery only from wrong-doer
(3) Entry on Land to Remove Chattel:
a. On wrongdoers landowner- can enter land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for the return of the item.
b. On land of innocent party- owner may enter and reclaim her chattel at a reasonable time and in a reasonable manner when the landowner has been given notice of the presence of the chatted; and refuses to return it. Owner will be liable for any actual damage caused by entry. c. On land through owners fault-no privilege to enter upon land and owner may recover chattel only through legal process
- Reasonable force may be used to recapture chattels *
Shop-Keeper’s Privilege (Defense to Intentional Tort)
Shopkeepers have a privilege when:
(1) Reasonably believe a theft has occurred
(2) Reasonably believe that the person
detained has committed a theft.
(3) They use reasonable force to detain.
(nothing deadly)
(4) They conducted a reasonable investigation.
(5) In a reasonable time- usually 15-20 minutes,
30 minutes maximum.
Necessity (Defense to Intentional Tort)
(1) Test: balance the reasonably anticipated harm verses the actual harm.
(2) Public Necessity: Where the act is for the public good the actor is not liable for any caused injuries.
(3) Private Necessity: Where the act is solely to benefit any person/property from destruction or serious injury, the actor must pay for any caused injuries.
Authority of Law-Privilege of Arrest (Defense to Intentional Tort)
(1) Arrest with warrant (police officer)
a. Warrant must be valid;
b. Person arrested must be named on
warrant
c. Proper Procedure is used in arrest
(2) Arrest without a warrant:
a. Present Felony- If there is a current felony or breach of peace, a police officer or private citizen may make a warrantless arrest if the current felony o breach of peace is being committed in his Prescence or if he reasonably believes it is about to occur.
b. Past Felony
1. Police Officer: may make warrantless arrest if reasonably believes the felony was committed ad the person that's being arrest committed the felony
2. Private Citizen: can only arrest if the felony, in fact, has been committed and reasonable belief that the person being arrested has committed the felony.
Negligence
Definition: A duty to conform to the standard of conduct that is breaches by the defendant and the breach is the actual and proximate cause of plaintiff’s damages.
Negligance-Duty
Only foreseeable plaintiffs are owed a duty of care.
Foreseeable Plaintiff: Plaintiff is generally a clearly foreseeable plaintiff.
(example: Parked car, pedestrian, people outside, cars driving, etc.)
Negligence- Standard of Care
(1) General standard
(2) Specific Standard (custom or usage may be used to establish standard of care)
(a) Emergency Situation
(b) Children
(c) Professionals
(d) Automobiles
(e) Common Carriers & Inkeepers
(f) Bailments
(g) Control of Third Person
General Standard of Care:
(1) Reasonable prudent person
(2) Physical characteristics are considered
(3) Mental Characteristics are considered.
Emergency Situation (Specific Standard of Care)
(1) Act as a reasonable person would under the same emergency situations
(2) Emergency will not be considered if of defendant’s own making
Children (Specific standard of care)
(1) Held to a standard of child of like age, education, intelligence, and experience.
(2) If engaged in adult activities, child is required to conform to adult standard of care.
(3) Up to and including age of 17
Professionals (Specific Standard of Care)
(a) Required to possess knowledge and skill of a member of the profession in good standing in same or similar localities:
1. National Board certification sets standard to national standard
2. Specialists- higher degree of care
(b) Informed Consent- a doctor has a duty to disclose risks of treatment to enable patient to make an informed consent.
Automobile Guest Statues (specific standard care)
(a) Passenger does not pay for ride– driver must warn of known, non-obvious defects and drive with reasonable care.
(b) Passenger pays for ride—driver must also make reasonable inspections for dangerous conditions.
(c) Guest Statues— one is only liable to nonpaying passengers for reckless tortious conduct.
Common Carriers & Inkeepers (Specific Standard of Care)
(a) Affirmative duty to use reasonable care to aid or assist passengers and guests and to prevent injury to them from third persons.
(b) Required to exercise great care held-liable for slight negligence.
Bailments (Specific Standard of Care)
Definition of Bailment: a bailment is created when one person (bailor) delivers personal property to another (bailee).
Bailments - Bailor v. Bailee
(1) Bailor:
a. Gratuitous Bailment: inform of dangerous
defects in chattel that you know of.
b. Bailment for hire: inform of dangerous
defects in chattel that he knows or should
have known of.
(2) Bailee:
a Sole benefit of Balor: need only exercise
slight care.
b. Sole benefit of the bailee: must exercise
great care.
c. Mutual Benefit: need only exercise
reasonable care.
Control of Third Person (specific standard of care)
(A) Parents are NOT Vicariously liable. (meaning liability without fault); for their torts of their minor children.
(B) An affirmative duty will be imposed if one has:
1. The ability to control a persons actions;
2. The authority to control a person’s
actions and;
3. The awareness that the person is likely to
commit acts that would require exercise
of this control.
Negligence Per Se
Definition: a statue specific duty that replaces the more general common law duty of due care if:
(1) Statue provides for criminal penalty.
(2) Statue clearly defines standard of conduct.
(3) Plaintiff is within protected class; and
(4) The statue was designed to prevent type of harm suffered by plaintiff.
Negligence Per Se- Results
(a) Violation of the statue establishes a presumption of duty and breach of duty.
(b) Compliance with the statue does not establish reasonable care per se but may evidence of due care.
Negligence- Rebutting Presumption
(A) Adequate Excuse
1. Where compliance would cause more danger than violation or;
2. Where compliance would be beyond defendant's control. 3. Sudden Emergency
Breach
(1) Definition: when defendant’s conduct falls short of required standard of care.
(2) Fact discussion as to whether the defendant met the standard of care:
a. The fact that the plaintiff was injured
does not prove breach.
b. The discussion should include:
1. Whether Defendant did something
that a reasonable person would
not have done or;
2. Whether Defendant did not do
something that reasonable
person would have done.
Res Ispa Loquitur
“The thing speaks for itself”
a. Accident is type that would not normally occur unless someone was negligent.
b. Instrumentally causing injury was in defendant’s sole control.
c. Plaintiff did not contribute to or cause injury
Causation
- Actual Cause
- Proximate Cause
Causation- Actual Cause
a. “but for”
b. Concurrent Causes
1. Multiple insufficient causes–
a. “but for” test works.
b. Substantial factor test is applied
c. Multiple Negligent Parties- only one caused
harm:
(1) Burden of Proof of causation shifts to
defendants.
(2) Any defendant is fully liable or;
(3) Defendant is liable for proportional
amount that is equal to market share
(4) Defendant can avoid liability if
defendant can prove defendant was
not the cause.
Causation- Proximate Cause (Direct)
a. Direct Cause
1. there is NO intervening act by third person
or an act of god between defendant’s act
and the plaintiff’s injury.
2. Direct causes are proximate causes.
3. Liable if some harm is foreseeable.
Causation - Proximate Cause (Indirect)
a. Indirect Cause
1. There is an intervening act by the third
party or act of god between the
defendant’s act and the plaintiff’s injury.
2. Liable if the intervening act foreseeable
Causation- Proximate Cause | Indirect Dependent Intervening Act:
1) Normal Forces- these are natural and normal reactions that are created by the defendant’s negligent act.
2) Dependent intervening forces are almost always foreseeable.
3) Medical malpractice is forseeable
4) Subsequent accident is foreseeable when original injury was a substantial factor in causing the second injury.
5) Subsequent Disease is foreseeable when original injury was a substantial factor in causing the second injury.
6.) Negligence of rescuers is foreseeable.
7.) Escape forces are foreseeable.
8.) Efforts to protect person or property are foreseeable
Causation-Proximate Cause | Independent intervening acts
a) These forces also operate on the situation created by defendant’s negligence but are independent actions rather than natural responses/reactions to the situation.
b) Independent intervening forces may be unforeseeable
c) Negligent acts of 3rd person are foreseeable.
d) Intentional tort and criminal acts of 3rd person are usually not foreseeable
e) Acts of God-
1) Usually foreseeable: Storms, floods, weather conditions
2) Usually not foreseeable: earthquakes, lightning
Joint tortfeasor problems
1) Joint & Severe Liability
2.) Satisfaction
3.) Release
4.) Contribution
5.) Indemnification
Joint tortfeasor problems | Joint & Several Liability
- General Rule: when two or more tortfeasors are either acting in concert or the injury is indivisible, then each tortfeasor is joint & severally liable.
- Acting in Concert: when both defendants are acting together, both are liable even though maybe only one did the tortious act
- Indivisible Injury: when the injury can not be attributed to only one defendant, then both are liable.
Joint Tortfeasor Problems | Satisifaction
1.) This is full payment by one of the tortfeasors in satisfaction of the judgments.
2.) Plaintiff is entitled to only one satisfaction.
3) If judgment has been satisfied, in full, then the plaintiff cant bring another action against a different defendant, however, the first defendant can go after the other defendants for contribution or indemnity.
Joint Tortfeasor Problems | Release
- A surrender of plaintiff’s cause of action- through contract or agreement, one tortfeasor is being released from liability.
- Common Law: a release of one tortfeasor releasees all others.
- Modernly: majority of states hold that a release does not release any other tortfeasor unless it is expressly provided for in the release.
- If consideration is paid, liability of other tortfeasors will be reduced by the amount of consideration.
Joint Tortfeasor Problems | Contribution
- Partial Reimbursement
- allows any defendant that pays more than their share of damages to recover from other tortfeasors.
- Methods of Apportionment
Joint Tortfeasor | Contribution- Methods of apportionment:
a. Traditionally:
1) equal shares
2) Each defendant
pays equal share
regardless of
fault.
3.) Minority Rule
b. Comparative Contribution:
1. Proportional
shares
2. Each defendant
pays in
proportion to
relative fault
3. Majority Rule
Joint Tortfeasor Problems- Contribution-Elements
- Contribution can only be recovered from party that would have been liable to original plaintiff.
-Contribution does not apply to intentional torts
Joint Tortfeasors - Indemnification
- Full Reimbursement
- shifts the entire loss among tortfeasors.
- Contractual Indemnification: party contractually promises to indemnify another
- Vicarious Liability: person who actually caused the injury is liable
- Passive v. Active negligence: Negligent party may recover from actively negligent party.
