Torts Flashcards
Master tort law for the California bar
Intentional torts
- Battery
- Assault
- False imprisonment
- Intentional infliction of mental distress (IIED)
- Trespass to land
- Trespass to chattels
- Conversion
Intentional torts - elements of every intentional tort
Act: volitional movement by D
Intent: specific (goal in acting is to bring about specific consequences) OR general (D knows with substantial certainty that consequences will result)
Causation: D’s conduct was substantial factor in bringing about injury.
Incapacity is no defense!
Intentional torts - torts for which transferred intent is possible
- Assault
- Battery
- False imprisonment
- Trespass to land
- Trespass to chattels
Elements of battery
- Harmful or offensive contact (judged by reasonable person standard)
- With P’s person (includes anything connected to P)
- Intent
- Causation
Elements of assault
- Act creating a reasonable apprehension in P (apparent ability enough; words not sufficient)
- Of immediate harmful or offensive contact to P’s person (immediacy key; words can negate immediacy)
- Intent
- Causation
Elements of false imprisonment
- Act or omission by D that confines or restrains P (P must know confined; moral pressure & future threats insufficient)
- To a bounded area (no reasonable means of escape known to P)
- Intent
- Causation
Elements of intentional infliction of emotional distress
- Extreme and outrageous conduct: exceeds all bounds of decency tolerated in a civilized society
Look for continuous conduct; conduct against fragile plaintiff, conduct by common carrier/innkeeper. - Intent or recklessness
- Causation
- Damages: severe emotional distress (only intentional tort to person require damages)
Elements of intentional infliction of emotional distress - bystander case
- D intentionally causes physical harm to 3P
- P suffers severe emotional distress
- Either:
i. Prima facie case for IIED
OR
i. P was present when the injury occurred
ii. P is a close relative of the injured person
iii. D knew (i) and (ii)
Elements of trespass to land
- Physical invasion of P’s real property (must be person or object; intangible matter is not trespass but may be nuisance)
- Intent (need only to intend to enter land; does not matter if unaware land belonged to another)
- Causation
Note: Proper P is person in possession, not owner of land.
Elements of trespass to chattels
- Act that interferes with P’s right of possession
Intermeddling: directly damaging the chattel
Dispossession: depriving P of possession - Intent
- Causation
- Damages (to chattel OR to a possessory right)
Elements of conversion
- Act that interferes with P’s right of possession
- Interference is so serious that D should pay chattel’s full value
- Intent
- Causation
Operates as a “forced sale”; D pays purchase price as if had purchased item.
Intentional torts - defenses
- Consent
- Privilege
- Necessity
Intentional torts - defense of consent - who can consent; limits on consent
Only plaintiff with legal capacity can give valid consent; children can consent to age-appropriate invasions
Cannot consent to a criminal act
Cannot exceed scope of consent
Despite express consent:
- Mistake taken advantage of by D vitiates
- Fraud as to non-collateral matter vitiates
- Duress vitiates, unless it threatens only future action or economic deprivation
Intentional torts - defense of consent - types
Express consent: P agrees to give D right to act in way that would otherwise be tortious.
Implied consent: inferred from custom, usage, P’s conduct OR implied by law for saving life/important property
Intentional torts - defense of privilege - self-defense
Availability: actor reasonably believes that he is being or about to be attacked
- Generally, initial aggressor may not claim
- Retreat not necessary, unless, under modern rule, deadly force is used, actor is outside home, and safe retreat is possible
Mistake: reasonable mistake as to existence of danger is allowed
Extent: may not use more force than is reasonably necessary to protect against injury
Intentional torts - defense of privilege - defense of others
Availability: actor reasonably believes other person could have used force to defend himself
Mistake: reasonable mistake as to whether other person is being attacked OR has self-defense right is permitted
Extent: may use as much force as could have used in self-defense
Intentional torts - defense of privilege - defense of property
Availability: actor may prevent the commission of tort against real/personal property, following a request to desist/leave (unless clearly futile or dangerous). Not available once tort completed, but may use in “hot pursuit” following dispossession. Privilege supersedes defense.
Mistake: reasonable mistake allowed as to whether intrusion occurred or request to desist required. Mistake not allowed as to whether entrant has privilege.
Extent: reasonable force; deadly force and mechanical devices (e.g., spring guns) not allowed
Intentional torts - defense of privilege - recapture of chattels
May use peaceful means to recover chattel from one whose possession began lawfully. Force may be used when in hot pursuit of one whose possession began unlawfully.
Privilege to enter another’s land to recover, unless property is on land through owner’s fault (e.g., negligently letting cattle wander).
Intentional torts - defense of privilege - shopkeeper’s privilege
A shopkeeper may have a privilege to detain for a reasonable period of time individuals reasonably believed to be in possession of shoplifted goods.
Intentional torts - defense of privilege - privilege of arrest
Actor may have a privilege to make an arrest of 3P. For a felony, police officer may make a reasonable mistake; citizens may make a reasonable mistake only regarding the identity of the felon, not whether a felony actually occurred.
Intentional torts - defense of necessity
Only apply to property torts (trespass to land, trespass to chattels, or conversion)
Public: D interferes with P’s property in emergency to protect community as a whole or a significant group of people
Private: D interferes with P’s property in emergency to protect own interest
Must pay damages in private necessity case, unless act was to benefit owner
Elements of defamation
- Defamatory language
- Of or concerning P
- Publication by D to a 3P, intentionally or negligently
- Damage to P’s reputation
- - If public concern/public figure – - Falsity
- Fault by D
Cause of action is personal and cannot be assigned; P must be living person
Defamation - libel
Written or printed publication of defamatory language. No need to prove special damages, general damages are presumed.
Defamation - slander
Spoken defamation. P must prove special damages (pecuniary loss), unless defamation is slander per se – comment that:
- Questions P’s conduct in business/profession
- P has a loathsome disease
- P is guilty of crimes of moral turpitude
- Woman is unchaste
Defamation - subject involving public figure or matter of public concern
Falsity: statement must be untrue
Fault: if P public figure, must show actual malice - D knew statement was false and made anyway, or was reckless in investigating accuracy. If P private figure, must show D was negligent or careless in checking accuracy of statement.
Defamation - defenses
- Consent
- Truth
- Absolute privilege: remarks made during judicial proceedings, by legislatures during legislative proceedings, by federal executive officials, between spouses
- Qualified privilege: reports of official proceedings, statements in the interest of the publisher (defending self), statements in the common interest of the publisher and recipient. Must have good faith belief statement is true and confine to relevant matters.
Privacy torts
- Appropriation of picture or name
- Intrusion on affairs or seclusion
- False light
- Public disclosure of private facts
Must show causation but not special damages.
Defenses: Consent and defamation privileges. Truth and good-faith are not defenses.
Cause of action is personal and cannot be assigned; P must be living person
Privacy torts - appropriation
Unauthorized use of P’s picture or name for D’s commercial advantage. Generally limited to advertisements. Newsworthiness exception.
Privacy torts - intrusion
Prying or intruding into something private that would be highly offensive to reasonable person.
Photographs in public places not actionable
Privacy torts - false light
Attribution to P of views does not hold or actions has not taken. False light must be highly offensive to reasonable person under the circumstances. Must be publication, and, if matter is in public interest, malice.
False light may also be defamatory. For defamation get economic damages, for false light get wounded feelings damages.
Elements of fraud/misrepresentation
- Misrepresentation of a material fact (silence generally not enough, must make affirmative misrepresentation)
- Scienter: when D made statement, knew or believed it was false or there was no basis
- Intent to induce reliance
- Causation: actual reliance
- Justifiable reliance (generally not justifiable to rely on opinion)
- Damages: actual pecuniary loss
Elements of negligent misrepresentation
- Misrepresentation by D in business or professional capacity
- Breach of duty toward particular P
- Causation
- Justifiable reliance by particular P, which could be contemplated
- Damages
Elements of interference with business relations
- Valid contractual relationship between P and 3P or valid business expectancy of P
- Knowledge of relationship or expectancy by D
- Intentional interference by D inducing breach or termination
- Damages
D’s conduct may be privileged if it is proper attempt to obtain business
Elements of malicious prosecution
- Institution of criminal proceedings against P
- Termination of proceedings in P’s favor
- Absence of probable cause for proceedings
- Improper purpose
- Damages
Prosecutors are immune; most jurisdictions extended tort to civil proceedings.
Elements of abuse of process
- Wrongful use of process for an ulterior purpose
2. Definite act or threat against P to accomplish ulterior purpose
Negligence - prima facie case
- Duty to conform to a specific standard of care
- Breach of that duty
- Breach was actual and proximate cause of injury
- Damages
Negligence - duty of care
- Foreseeable P
- Cardozo/majority: P in foreseeable zone of danger
- Andrews/minority: duty to all - Standard of care
- Reasonable person: objective standard accounting for D’s physical characteristics but not mental deficiencies. If D has superior skill or knowledge, must exercise.
Negligence - duty of care - special cases
Professionals: knowledge and skill of member of profession in good standing in similar community (or nationally, for medical professionals)
Children: standard of a child of like age, education, intelligence, and experience. Subjective test. Children under four usually not negligent. Children in adult activities held to adult standard of care.
Common carrier/innkeepers: very high degree of care to passengers/guests; liable for slight negligence.
Negligence - duty of care - landowners - undiscovered trespasser
No duty, so undiscovered trespasser always loses.
Negligence - duty of care - landowners - those off premises
Duty to protect from unreasonably dangerous artificial conditions abutting adjacent land.
In urban areas, liable for damage caused by falling trees or branches.
Negligence - duty of care - landowners - discovered/anticipated trespassers
Duty to warn of or make safe known, concealed artificial conditions involving risk of death or serious bodily harm.
Negligence - duty of care - landowners - child trespassers (attractive nuisance)
Duty to warn of or make safe artificial conditions on property, if conditions below met.
- Dangerous condition of which possessor is or should be aware
- Possessor knows or should know children frequent vicinity
- Condition likely to cause injury because of children’s inability to appreciate risk
- Expense of remedying condition is slight compared with magnitude of risk
Negligence - duty of care - landowners - licensees
Licensee enters with possessor’s permission for his own purpose or business, not possessor’s benefit. Includes social guests
Duty to warn of or make safe known, nonobvious dangerous conditions, whether artificial or safe.
Negligence - duty of care - landowners - invitee
Invitee enters in response to an invitation by possessor in connection with a business or as member of public when possessor holds open land to public.
Duty to warn of or make safe nonobvious dangerous conditions, whether artificial or safe, that possessor knows of or could discover through reasonable inspection.
Negligence - duty of care - statutory standards of care
“Negligence per se” is rule that violation of criminal statute creates conclusive evidence of breach of duty.
- Statute provides a criminal penalty
- Statute clearly defines standard of conduct
- P is member of class statute intended to protect.
- Accident falls within the class of risks the statute was trying to prevent.
Violation may be excused where compliance with cause more danger or where compliance beyond D’s control/impossible.
Negligence - duty of care - negligent infliction of emotional stress
- P is within zone of danger of physical injury or D’s conduct creates risk of severe distress (e.g., erroneously reporting relative’s death)
- P suffers physical symptoms from distress
OR
- P sees D negligently injure 3P
- P and 3P are closely related
- P present at the scene of injury
- P personally observed or perceived event
- P suffers physical symptoms from distress (majority)
Negligence - breach - res ipsa loquitur
- Accident causing injury is type that would not normally occur unless someone was negligent
- Negligence is attributable to defendant (e.g., D had exclusive control of instrumentality causing injury)
Negligence - causation - types of actual cause/cause in fact
But for: injury would not have occurred but for act or omission; applies where several acts, each insufficient to cause injury alone, together cause injury
Substantial factor: when several causes bring about injury, any of which would have been sufficient alone, D’s conduct is cause in fact if it was substantial factor in causing injury
Alternative causes: P injured by one of two acts, only one of which actually caused injury; burden shifts to Ds to show each’s actions not cause in fact.
Negligence - causation - types of proximate cause
Direct cause: uninterrupted chain of events from negligent act to P’s injury; D is liable for all foreseeable harmful results
Indirect cause: intervening force comes into motion after D’s negligent act and combines with it to cause injury; D is liable for all foreseeable harmful results.
If intervening force produced unforeseeable harmful result, force is superseding. Not superseding:
Intervening medical negligence
Intervening negligent rescue
Intervening protection or reaction forces
Subsequent disease or accident.
Negligence - defenses - contributory negligence
Minority rule. P is held to negligence standard of care; P’s negligence completely cuts off liability.
Exceptions: no defense to intentional torts or to liability based on violation of statute intended to protect Ps from incapacity/lack of judgment
Last clear chance: person with last clear chance to avoid accident who fails to do so is liable
Contributory negligence is imputed only when ordinary negligence would be computed.
Negligence - defenses - assumption of risk
Minority rule. P maybe denied recovery if he assumed risk of damage caused by D’s act. P must have known of risk and proceeded voluntarily. Assumption can be implied.
Negligence - defenses - pure comparative negligence
Dominant rule, and default on bar. P’s damage award reduced by percentage of fault attributable to him.
Negligence - defenses - modified comparative negligence
Significant minority rule; only use on bar if mentioned by name. P’s damage award reduced by percentage of fault attributable to him; if P’s fault exceeds threshold (typically, 50%), recovery barred completely.
Strict liability - prima facie case
- Nature of dangerous activity imposes an absolute duty to make safe
- Dangerous aspect of activity was actual and proximate cause of P’s injury
- P suffered damage to person or property
Strict liability - dangerous animals
Wild animal: strictly liable unless P is trespasser; safety precautions irrelevant
Domestic animal (house pets and farm animals): not strictly liable unless D is aware of animal’s dangerous propensities (one bite rule)
Strict liability - abnormally dangerous activities
- Activity creates a foreseeable risk of serious harm even when reasonable care exercised
- Activity not a matter of common usage in community
Strict liability - products liability
- Strict duty owed by commercial supplier of product
- Production or sale of defective product
- Actual and proximate cause
- Actual: defect existed when product left D’s control
- Proximate: same as negligence - Damages (to person/property - economic loss alone insufficient)
Strict liability - products liability - types of defects
- Manufacturing defect
Product departs from its intended design. Simply: one-in-a-million bad product that slips through. - Design defect
Product could have been built differently. Hypothetical alternative design must be:
i. Safer than version actually sold.
ii. Economical (i.e., costs roughly the same).
iii. Practical; cannot impair utility. - Information defect
Product cannot be physically redesigned and it still has residual risks that consumers would not be aware of and it lacks adequate warnings about those risks.
Strict liability - defenses
Contributory negligence jurisdiction: contributory negligence no defense if P failed to realize danger or guard against it; is defensive if P knew of danger and his unreasonable conduct was cause of harm
Comparative negligence jurisdiction: applies comparative negligence rules
Comparative contribution
Majority view is that jury will assign percentages for Ds’ fault; D who has paid in full can recover appropriate percentages from each D.
Minority view is equal shares.
Indemnity
Vicariously liable defendant who has paid in full can recover entire amount from active tortfeasor. In strict products liability case non-manufacturer who has paid in full can recover entire amount from manufacturer.
Federal Tort Claims Act
Federal government has waived tort immunity for most non-discretionary (i.e., ministerial) acts.
Exceptions: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation/deceit, interference with contract rights.
