Torts Flashcards
Automobiles
An owner of an automobile is vicariously liable for the negligent acts of his agents or members of his family when using the auto for “family purposes.”
Attractive nuisance
- Kid too young 2. Foreseeable 3. D knows danger 4. Artificial 5. Risk outweighs utility. Duty arises when D knows or reasonably should know of an unreasonably dangerous artificial condition on his property (like known trespassers).
Private nuisance
substantial and unreasonable interference with a plaintiff’s use and enjoyment of her land. To recover in a nuisance action, the interference with a plaintiff’s use and enjoyment must be “substantial,” that is, it must be offensive, inconvenient, or annoying to an average person in the community. OJO liability only to possessor.
Intrusion into seclusion
intentional interference (offensive to reasonable person) w. sphere of privacy, no publication requirement → ED & punitive
Commercial appropriation
intrusion ok but wants compensation OJO! Must be for profit, not news
Public disclosure of private true facts
- Disclosure 2. Private facts 3. Highly offensive to reasonable person 4. Not news need publication can get injunction OJO too much time or if got from public records then won’t lie
False light
defamation but not reputation harming 1. Pub 2. False 3. Highly offensive 4. Some level of fault. If media defendant, need actual malice.
Public nuisance
an unreasonable interference with a right common to the general public. factors include: (1) whether the conduct significantly interferes with the public health, safety, peace, comfort, or convenience; (2) whether the conduct is proscribed by a statute, ordinance, or administrative regulation; and (3) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.
Torts of an independent contracter
Generally not liable. Yes in two instances. 1. where a contractor engages in inherently dangerous activities (any activity as to which there is a high degree of risk in relation to the particular surroundings, recognizable in advance as requiring special precautions.) Examples include fumigating with poisonous gases, using explosives in an urban setting, etc. 2. where contractor does a duty that law does not permit to be delegable
Wrongful Death v. Survivor Statute
WD is a tort brought by the heirs of a decedent; Survivor Statute allows the estate to maintain the decedent’s cause of action, becomes asset of the estate
Trespass to Chattels
intentionally dispossessing another of the chattel or by using or intermeddling with a chattel in the possession of another. A plaintiff must generally prove damages in the actual amount caused by the tortious conduct, or in the case of dispossession, by the loss of use.
Indemnification
indemnification shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm. so e.g. if one tortfeasor is intentional while the other merely negligent, the intentional may be liable for all damages under an indemnification theory. or if one was vicariously liable.
Types of vicarious liability
- employer/ee
- indep. contractor
- joint enterprise
- owner/driver of auto
- parent-child
- bailor/ee
- tavernkeepers
Joint enterprise liability
for partners and joint venturers - liable for each others torts if committed in course/scope of partnership/joint venture
Checklist for intentional torts
voluntary act: conscious & willed
intent: 1. Desired consequences OR 2. Knew substantially certain
NO proximate cause: liable to full extent
harm: establish elements, OR spec. injury needed?
Battery
- Intent
- Harmful/offensive contact (to reasonable person or knows of susceptibility)
- With P or sth closely related (need not know at time)
NO proof of harm needed
Assault
- Intent
- Reasonable apprehension (must be aware, reasonable)
- Of immanent battery
NO proof of harm needed
False Imprisonment
- Intent (NO motive)
- Confinement (bounded area, by force or threat of, no reasonable means of escape, embarrassment unreasonable)
- Against P’s will
- P knew or if not was injured – elements OR spec. injury needed
Intentional Infliction of Emotional Distress
- Intent/reckless (conscious disregard of high risk – no transferred intent but may be reckless for 3rd party plaintiff)
- Extreme and outrageous conduct (exceeds all bounds OJO! common carriers just reasonably offensive, supervisors)
- Causation (basketcase b4?)
- Severe emotional distress (nontrivial, not transitory/shortlived)
FOR a 3rd party: if D IIED’d 1. Immediate family member and present → no harm req. OR 2. Anyone present → prove physical
Trespass to land
- Intent
- Entry (any tangible)
- P’s land (anyone in possession)
OJO! Mistake not a defense
→ liable full extent harm + nominal, restitutionary (ejectment), injunction
Trespass to chattels v. Conversion
- Intent (no mistake D) / BFP can be converter
- Interference / exercising dominion or control and seriously interfering
- P’s chattel
- Harm (dispossession, rental value, cost of repair, replevin v. forced sale)
Defenses to intentional torts
POPCANS Privilege Others Property Consent Authority Necessity Self-defense
Defenses: Consent
express: manifests willingness (ONLY to extent of consent)
implied: through conduct (ie sports) scope: what D would reasonably believe was implied consent
Defenses: Self Defense
honest & reasonable belief force necessary to prevent immanent harm. Must be proportional. honest but unreasonable can take from murder to manslaughter.
deadly → NO duty to retreat in most jurisdictions, never from the home
OJO! MD duty to retreat before deadly
Defenses: of Others
commit tort while protecting victim innocent from harm. OJO if you defend the aggressor: most places honest & reasonable belief still defense, minority step into the shoes
Defenses: Authority
arrest: Felony IF reasonably believes P committed Misd (but NOT if breach of peace) (but NOT IF wrong then liable)
shopkeeper’s privilege: reasonable suspicion of shoplifting, IF reasonable time and investigation
OJO MD: shopkeeper must have probable cause
Negligence: checklist
duty standard of care breach of duty cause in fact proximate cause damages defenses
Duty: Define and general lack of
whether law imposes legal obligation on D toward P. If D’s affirmative risk creating behavior caused injury, then has duty to foreseeable P. In general NOT when: nonfeasance, damage other than personal or property
Duty: Exceptions to Nonfeasance Lack of Duty
misfeasance: affirmative risk creating OR negligent omission EG negligent entrustment
rescue: duty where (1) where D’s tortious conduct creates need for rescue, D must affirmatively rescue (2) where D starts to rescue must act reasonably, worse position v. gross negligence (3) rescue creates reliance
special relationship of dependence, incl. common carriers
control 3rd parties (1) special relationship if know dangerous propensity duty to warn others parent/prison/psych (2) Dram Shop Acts (NOT IN MD): if seller of booz knew/should have that intoxicated & driving (3) negligent entrustment knew/should have that couldn’t handle e.g. explosives
duty to protect (1) special rel. (LLT, business) (2) high foreseeability (proof of previous) → take affirmative steps (e.g. lights in hallway)
Duty: Government as D
IF proprietary function same as private
IF discretionary function no duty
IF ministerial govt has duty to do it right
IF sued for inadequate response to performing public duty (e.g. police, fire) won’t be liable UNLESS 1. Reliance on response of govt 2. Special relationship OR 3. Agency increased danger
utility ONLY liable if contractual relationship
Duty: Land possessor
(NOT just owners)
invitee: there w. consent & beni to possessor → reasonable care (includes searching out dangers)
licensee: w. consent, no beni → warn of known concealed dangers
trespassers there w.o consent → no infliction of willful/wanton harm. OJO! IF known, warn of known artificial dangers
artificial activities: duty of reasonable care (warn of known dangers) to everyone including Ps adjacent to land except unknown trespassers
attractive nuisance: 1. Kid too young 2. Foreseeable 3. D knows danger 4. Artificial 5. Risk outweighs utility MD
LL-T ONLY 1. Common area (control) 2. Negligent repairs 3. Known hidden dangerous defect 4. If knows T will open to public, reasonable care to discover defects
Standard of Care: Define and General questions
measure of duty owed. Reasonably prudent person under same/similar circumstances
1. what’s the conduct 2. Probability of harm 3. What likely injury 4. What burden to act differently 5. Customary conduct
Standard of Care: What is considered
YES: physical conditions (blind), emergency not of D’s making
NO: clumsy, insane, stupid
KIDS: reasonable of same age, experience, intelligence (subj and obj) OJO! Engaged in adult/inherently dangerous activity then treated as adult
PROFESSIONALS: : where extra training/skill, must use customary practice of profession
drs typical skill w. national standard OJO! Must divulge all material risks reasonable patient → malpractice
legal: cause in fact issue P has to prove would have one lawsuit
Standard of Care: Per Se
apply crim/other law to tort context 1. P of the class to be protected 2. harm the statute protects against (MD ONLY EVIDENCE OF BREACH) NOT if more dangerous to comply with statute emergency licensing statute
Breach: Define and Examples
failure to meet standard. Show every element by a preponderance
slip and fall: D business negligent in failing to discover and failing to fix BUT NOT if not there long enough
RIL: 1. Kind of thing prob result of neg 2. D control over harm causing instrumentality (prob, not exclusive) 3. P didn’t contribute
But for Causation: Define and four peculiar problems
connect breach to injury, more likely than not.
multiple Ds → substantial factor, use where either alone would have caused the harm so neither but for, joint/several liability
loss of chance → more likely than not if diagnosis had been correct would have preserved X% chance of survival
alternative liability theory: 1. Few Ds 2. Each neg 3. All before court → burden to Ds to show NOT the cause, jt/several (e.g. doctors when patient unconscious)
market share: generic product, can’t tell which D, all neg → several liability
Proximate cause: When unforeseeable…
extent of harm: liable for all of it, take victim as find him
type of harm: 1. What makes D’s conduct neg 2. Is harm of the type foreseeable? → liable
manner of harm: superseding = so culpable as to break chain subsequent neg conduct foreseeable (drs, god, int tort, etc.)
OJO!! Unforeseeable plaintiff is a DUTY issue, NO DUTY TO THE UNFORESEEABLE PLAINTIFF
Negligence Damages
compensatory: return to pre-injury state 1. Foreseeable type 2. Reasonably certain 3. Unavoidable (ie no mitigation problem)
special: measurable
general: pain and suffering etc.
collateral source: don’t beni from insurance policy
avoidable consequences: must take reasonable steps to mitigate
OJO! punitive NEVER recoverable: must have willful wanton reckless malice conscious disregard + high prob of harm
Negligence Defenses: List
- contributory negligence (last clear chance)
- comparative fault (pure)
- assumption of risk
- avoidable consequences
Negligence Defenses: Cont. Neg. v. Comparative Fault
CN: P’s conduct unreasonable & contrib. to P’s harm → any fault is bar to recovery. BUT if D had last clear chance (1. D knew of P’s neg 2. D could by ordinary care avoid accident 3. D’s neg failure was after P’s neg) THEN D liable. OJO! MD is CN + last clear chance
pure CF: P recovers % D’s fault (MBE)
modified CF: if P is >= 50%, can’t recover → jt/several liability for D portion
Negligence Defenses: Assumption of Risk
P oral/written relieves D of duty of care 1. P knew of the risk 2. P understood the risk 3. P confronted risk voluntarily
OJO! Subjective ie intoxication matters, may bar defense.
OJO professional rescuers can’t recover
OJO! Only negligence
Strict Liability: Categories
animals wild: liability if injured by characteristic of animal. Domestic: only liable if know/should have of dangerous propensity (MD must confine “dangerous dog” has killed/injured a person or municipal determination) OJO! unknown trespassers can’t recover in SL for domestic animals
abnormally dangerous activity: 1. Inevitable high risk 2. Not an ordinary activity OJO! must be the type of harm that makes the activity dangerous OJO in MD only land owners
SEE ALSO products liability
defenses ONLY assumption of risk OJO in MD also contributory negligence
Products Liability: Strict
proper plaintiff: any user/consumer/bystander
proper defendant: anyone in mkting chain, NOT occasional seller
proper context NOT service (predominant test)
defect: SEE OTHER CARD
but for AND proximate cause OJO! Learned intermediary e.g. Doctor assume they pass warning to patient → superseding
damages: personal or property BUT NOT lost profits unless incidental to the others, NOT damage to product itself, otherwise sue on warranty OJO MD DIFFERENT
defenses: 1. misuse (unintended & unreasonable) 2. alteration (unforeseeably) 3. assumption of risk
Products Liability: Strict, Defects
- manufacturing defect: not way manu intended → 1. more dangerous than ordinary customer would expect OR unintended by manu AND 2. Existed when left D hands
- design defect: product line defective. two tests: 1. ordinary consumer expectation test: more dangerous than would expect (MD)
2. risk-utility balancing: likelihood of harm v. avoid/feasible/impact of alts
OJO NOT for products of extraordinary social utility and no alts (drugs) - warning inadequate: 1. Reasonably inform reader? 2. Look at language used, placement, size
- warning absent: 1. Risks manu knew/should have 2. Gravity and risk of harm
Products Liability: Negligence
- Any foreseeable P 2. Unreasonable conduct of D (NOT product) 3. RIL 4. Negligence defenses (CF/CN, assumption of risk, avoidable consequences)
Products Liability: Warranty
only way to recover for harm to product itself OJO! Express → any seller, implied → only merchants
Defamation: General Elements
- Defamatory
- Publication
- Libel or Slander?
- Privileges
- Constitutional intent standard
Defamation: what’s defamatory?
makes P subject to scorn or dissuade from dealing w. P in eyes of reputable group
NOT if unbelievable or pure opinion EXCEPT if provable
OJO! If not named must allege that it’s about P; can’t be large group
Defamation: What’s publication?
- s/o other than P heard
- Intentional or negligent disclosure by D
OJO! Republication liable
Defamation: Slander v. Libel
libel: permanent → reputational harm presumed, damages don’t have to be proved
slander: oral → must prove special damages EXCEPT if per se: 1. Unfit to perform trade/profession 2. CIMT 3. Current loathsome disease 4. Lack of chastity in a woman (spousal misconduct)
OJO MD no presumed damages, even in libel must prove actual damages. BUT libel per se still easier because injurious as spoken instead of needing to explain context.
Defamation: Privileges
- P has to prove falsity.
- Absolute: b/w spouses, on House/Sen floor, b/w high Exec officials, judicial proceedings
- Qualified priv. if 1. Info affects important interest of D and 2. Recipients knowledge will facilitate protection → lost if 1. Bad intent, 2. Knows false or 3. Reckless w truth/publication
Defamation: Constitutional Intent
- public official: CCE of actual malice (knew false or acted recklessly wrt truth – entertained serious doubts)
- Public figure: household names and inject self in particular controversy, same as above
- Private person public concern TEST: if D is media or widely disseminated (not exact)
→ can’t be strict liability, must have actual malice to get presumed (general) or punitive damages - Private person private concern → we don’t know except malice not required
Economic torts
- intentional misrepresentation
- negligent misrepresentation OJO MD requires that duty of care arises from intimate nexus between parties
- interference with contract relations
- interference with prospective economic advantage
- injurious falsehood (business defamation
- deceptive trade practices MD only
Econ Torts: Interference w. K Relations
- Knows of K 2. Acts w purpose to create breach or make harder to perform
Econ Torts: Interference w. Prospective Economic Advantage
- Knew 2. Acted to interfere for improper motives
Econ Torts: Injurious Falsehood
(business defamation) 1. False 2. Actual malice 3. Published 4. Spec. economic injury
Wrongful Institution of Legal Process
malicious persecution crim 1. S.o outside system 2. No PC and bad motive 3. Gets prosecution going 4. Dismissed
abuse of process: intentionally misuses for ulterior motive that damages P (NB P doesn’t have to prevail) OJO in MD must prove special damages
Duty: Non personal/property damage
- NIED
- wrongful conception
- wrongful birth
- wrongful life (doesn’t lie)
Duty: NIED
- direct 1. Negligent conduct 2. In zone of danger 3. Physical manifestation OJO! Death telegram, corpse
- bystander 1. Present 2. Close relationship 3. Sometimes zone of danger
Duty: Wrongful conception OR birth
wrongful conception: healthy but unwanted child → costs associated w. birth, none other
wrongful birth: Dr failed to diagnose defect → special offenses b.c of condition
OJO wrongful life (child sues for existing) will not lie
MD Damages Limits
for personal injury or wrongful death: noneconomic no more than $500,000 and going up by year starting 1995
MD Nuisance per se vs. per accidens
at all times under all circumstances vs. becomes a nuisance because of location, manner of operation, etc.
