Tort Rules Flashcards
Intentional Torts
B A I F T T C
Require intent (knows with substantial certainty that a particular effect occurs) and causation (the effect legally caused by the defendant’s act or set in motion by the defendant.
Battery
Intentional infliction of a harmful or offensive bodily contact
Assault
intentional causing of the apprehension of an imminent harmful or offensive contact
IIED
the intentional or reckless infliction of severe emotional distress caused by def’s extreme or outrageous
conduct
req’s intent, severe emotional distress, extreme and outrageous conduct,
3rd party - P present and known to be present and close relative OR present and known ans physical harm
False Imprisonment
the def intentionally causes the P to be confined to a bounded area with no reasonable means of escape and the plaintiff is either aware or harmed
Trespass to land
intentional physical invasion of the land of another
mistake of ownership is no defense. damage not necessary, nominal damages.
Trespass to Chattels
an intentional interference with a person’s use or possession of a chattel. Damage is loss of value caused by the loss of use
Conversion
intentional interference with the plaintiff’s possession that is so substantial that it warrants requiring the def to pay full value
Defenses to Intentional Torts
C SD DO DP RC N
consent - within scope
self defense - reasonable to threat
defense of others - reasonable force to reas. belief
def of property - no deadly force
recapture of chattels - reas. force to regain possession
necessity - public/private to prevent a greater harm than the tort
Negligence
Negligence is a breach of the standard of care. Requires duty, breach, causation (actual and proximate) damages and no defenses
Duty
A person has a duty to act as a reasonable person
maj. Cardozo foreseeable plaintiff, min. Andrews everyone.
Special Duties
A P C B O V
affirmative duty professionals children bailment owner/occupiers of land violation of statute
Affirmative Duty
Generally no affirmative duty but special relation, causing the danger, volunteer assistance
Professionals
required to possess the knowledge and skill of a member of their profession in good standing
fireman’s rule - cant sue for negligence when injured by inherent risks
Children
Must conform to a child of like age, experience, and intelligence unless adult activity then adult standard
Bailment
Bailor- gratuitous - inform of known defects in chattel
hire- should be aware
Bailee - standard is who benefits - sole benefit to bailor, low, benefit to bailee then high standard of care
Owners of Land
O T Ex to T L I L’ee L’or V
outside of premises trespassers ex to trespasser duty licensee invitee lessee lessor violation of statute
outside of premises
nat conditions no duty, artificial conditions, duty to warn
trespassers
generally owes no duty to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitees/licensees that go beyond scope of invitation
exceptions to trespasser rule (2)
known or frequent trespassers - duty to warn of known dangers and artificial conditions that pose a risk of death or serious bodily harm
attractive nuisance - a landowner must exercise ordinary care to avoid foreseeable injury to children if
1) the owner knew or should have known that the area is one where children trespass
2) condition poses an unreasonable risk of serious injury or death
3 ) children do not discover the risk or realize the danger due to youth
4) benefit to owner and expense to remedy the condition is slight compared to the risk
5) owner fails to use reas. care to eliminate danger
Licensee
one who enters the owners land with the owner’s consent for his own purpose.
Duty to warn of all known dangerous conditions that create an unreas. risk of harm that the licensee is unlikely to discover and to use reas. care in conducting operations on the property. No duty to repair or inspect
Invitee
one who enters the land in response to an invitation by the owner to do business with the owner or as a public invitee for land open to the public at large.
Duty to make a reas. inspection to find hidden dangers and take affirmative actions to remedy a dangerous condition
Lessee
General duty to maintain the premises same as landowners
Landlord
must
1) warn of existing dangers which he knows or should know that the lessee is unlikely to discover
2) non-negligent repair- if promise to repair, must do so non-negligently
3) maintain common areas
Violation of Statute -Negligence per se
is negligent per se if :
violates statute without excuse
P is within the class of persons the statute is designed to protect
the harm is the type that the statute was designed to protect against
negligence per se will establish the standard of care and breach
Breach
breach occurs when the defendant’s conduct fails to conform to the duty of care
res ipsa loquitor
can be used to establish breach of duty in situations where the event transpiring creates an inference that the defendant was probably negligent because the action is the type that does not happen absent negligence
Actual Cause
but/for the defendant’s actions, plaintiff would not have been harmed
joint tortfeasors
where two or more def are at fault and their conduct combines to cause the harm to the plaintiff, they will all be jointly and severally liable, as their actions are a substantial factor in causing the injury
Proximate Cause
a def is liable for all harmful results that were reasonably foreseeable.
eggshell skull plaintiff
def is also liable for any unforeseen physical consequences to plaintiff due to weakness or susceptibility because “take plaintiff as find him”
intervening causes
liable for foreseeable intervening -subsequent med malpractice and neg. of rescuers
not liable for superseding intervening causes that are reasonably foreseeable
Damages
Damages require an actual injury. Can be direct loss, put of pocket economic loss stemming from injury, pain and suffering and hedonistic. P has a duty to mitigate and punitive may are available if def. conduct was wanton and willful
NIED
def is liable when he engages in negligent conduct that causes the P to suffer severe emotional distress
defenses to negligence
contributory negligence - negligence on the part of hte plaintiff that contributes proximately to his injuries and completely bars recovery. abolished in most jurisdictions
comparative negligence - applies when plaintiff’s own negligence has contributed to his injuries but is not a complete bar to recovery. liability is divided between the P and def in proportion to their degrees of fault.
partial comparative - bars if plaintiff was at least as negligent as def
pure comparative - allows recovery no matter how negligent P was but reduces by percentage of fault
assumption of the risk - plaintiff knew of the risks and voluntarily consented to the risks
Strict Liability
a u
Animals
domestic animals - reasonably foreseeable damage from trespass of his animals OR
owner knew or had reason to know of the animals’ dangerous propensities
wild animals - nontrespass injuries which are a result of the animals dangerous propensities typical of the species
ultrahazardous activity 5
activity is abnormally dangerous if:
high degree of risk of serious harm
risk cannot be eliminated by the exercise of reasonable care
activity is not common
activity is not appropriate for the location
danger outweighs the activity’s value to the community
Products Liability
i s n w m
liability of a seller of a tangible item, which because of a defect,, causes injury to its purchaser, user, or bystander can be based on any of these five theories:
intent, strict product liability, negligence, breach of warranty, or misrepresentation.
intent
defendant is liable if intended the consequences or were substantially certain to occur, punitive damages also available
strict liability 6
a seller of a product is liable without fault for personal injuries caused by a defective product if the following elements are met
commercial supplier
one who places the product in the stream of commerce without substantial alteration . Commercial suppliers include manufacturers and retailers.
breach
breach of duty is established by showing the product was defective. There are three types of product defects: manufacturing defect, design defect, and a failure to warn
manufacturing defect
a manufacturing defect occurs when the product is different and more dangerous than the others of its line because this product deviated from its intended design
design defect
a design defect occurs when all products of a line are the same and all bear a feature whose design is itself defective and unreasonably dangerous. a design defect can be shown by the consumer expectation test or the risk-utility test.
consumer expectation test
a product must meet the minimum safety expectations when used in a reasonably foreseeable manner
risk utility test
a product is defective if the risk of danger inherent in its design outweighs the benefits of such design and the danger could have reduced or avoided by the adoption of a reasonable cost-effective alternative design. The court will consider the cost and utility of an alternative design compared to the cost and utility of the current design
warning defect
a product is defective when the make fails to give adequate warning as to a known danger in the product in a particular use of the product that is nonobvious.
compliance with industry standards
not conclusive evidence that a product is not defective but non-comlpliance can establish that a product is defective
actual cause
but/for the defect, plaintiff would not have been harmed and that the product was defective when it left the plaintiff’s control
proximate cause
foreseeability
damages
physical injury or property loss there is no recovery for purely economic loss
defenses
assumption of the risk
comparative negligence - product misuse if used in a manner that was not foreseeable
disclaimers are not effective
negligence
same as negligence but retailers are rarely liable because they only have a duty to inspect or warn of known dangers
breach of warranty 3
express warranty - any statement of fact that concerns the goods. P only needs to show that product did not live up to its warranty to establish breach
implied warranty of merchantability - implied in every sale of goods that they are fit for the ordinary purposes for which they are used
fitness for a particular purpose - implied in every sale of goods when the seller knows that the buyer wants the goods for a particular purpose and the buyer relies on the seller’s judgment to recommend a particular product
defenses to warranty
assumption of the risk
comparative/contributory for product misuse unless foreseeable
failure to give notice of breach under the UCC
misrepresentation
MS ICyJaP
misrepresentation - action or omission of a meterial fact
scienter - knowledge of statement’s falsity or reckless disregard of the truth
intent to produce P’s reliance on the misrep
causation
justifiable reliance
pecuniary damages
nuisance
nuisance is a substantial and unreasonable interference with another’s use and enjoyment of land in which he has interest
- substantial interference - offensive, inconvenient to the average person in the community
- unreasonable -harm to P outweighs utility, harm is greater than P should bear without consideration, factors land value, neighborhood and alternatives
public nuisance
substantial, unreasonable interference with the morals, welfare, safety, or property rights of the community
interference factors: location, frequency, duration, degree of damage, and social value
-recovery by private party is only possible if suffered damage different in kind to that of the general public
defenses to nuisance
legislative auth - zoning ordinances can help
assumption of the risk if negligence theory
coming to the nuisance - unless P only did it to file harassing lawsuit may only limit damages
remedies
include damages and injunctive relief
defamation - CL
OP Does Suck
Common Law Defamation occurs when a false and defamatory statement of or concerning the plaintiff is published to another person causing damage to P’s reputation
opinion or true statements
never defamatory
publication
must be intentionally or negligently made and must be understood by the third person. repeaters of the statement are also liable. need not actually harmed P but must show that it would have been believed
damages
l sps
damages depend on the type of defamation
libel - is written or printed publication embodied in physical form incl. tv and radio and P will not need to show special damages and general damages are presumed
slander - is spoken defamation and P must show special damages unless it is slander per se.
slander per se damages are presumed and include:
adversely reflects on P’s fitness to conduct his business
alleges one has a loathsome disease
morally culpable criminal behavior
serious sexual misconduct
Con Law defamation
must be analyzed if the matter is of a public concern. req’s:
prove elements of C/L defamation
establish fault of plaintiff by analyzing status of P
public figure - P is a public figure if he has achieved pervasive fame or voluntarily assumed a role in a public controversy. courts will apply an actual malice standard which exists when there was knowledge that the statement was false or with reckless disregard as to truth. damages are presumed if actual malice is shown
private person - any person not considered a public figure. negligence standard applies and only actual injury damages apply. if actual malice shown, then damages are presumed and punitive damages may apply
defenses
truth
consent
absolute privilege -judicial, legis. proceedings, govt officials, between spouses even with malice
qualified privilege (no malice) - publishers, protection, public interest,
privacy
m i p p
misappropriation - unauthorized use of plaintiff’s likeness for commercial advantage
intrude on plaintiff’s solitude - unreasonable intrusion into private aspect of P’s life in a private place that is highly objectionable to a reasonable person
false light - one attributes to P views or actions he does not hold or did not take, and the false light is objectionable to a reasonable person. malice standards apply
publicity of private life - public disclosure of private facts
that are not a matter of legitimate public concern, objectionable to a reas. person and published to community at large
misuse of legal process 5
i t a i d
institution of criminal or civil proceedings termination in P's favor absence of PC improper purpose damages suffered by accused
interference with business relations 4
vK k i d
valid K or valid business expectancy between P and 3rd party
knows or should have known
intentional interference that induces a breach or termination
damages
BUT…may be privileged if proper attempt for own business using fair and justifiable methods
3rd party issues
vicarious liability
vicarious liability - one is vicariously liable to another when he commits a tortious act against a third party and another person is liable to the third party for this act
respondeat superior - if an employee commits a tort during the course and scope of his employment, his employer will be jointly liable
independent contractor - negligent hiring or nondelegable only
multiple defendants
joint and several liability - exists where two or more negligent acts combine to proximately cause an indivisible harm making each liable for the entire harm. P can recover entire loss from either def.
contribution - def. who pays more than fair share can recover from other def
indemnity - shifting of entire loss to another def.
survival and wrongful death
survival actions - allows one’s cause of action to survive the death of the party. (except defamation, rt to privacy)
wrongful death - grant recovery for pecuniary injury resulting to the spouse and next of kin and are allowed to the extent the deceased could have recovered if he lived
tortious interference with family relations
husband or wife may bring action for loss of consortium or services for loss of spouse or child
