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Torts Flashcards

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1
Q

Elements: Intentional Torts w/ Physical Injury (3)

A
  1. Act
  2. Intent
  3. Causation
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2
Q

Define: Intent (2)

A
  1. Actor acts with the purpose of causing the consequence; or
  2. The actor knows that the consequence is substantially certain to follow
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3
Q

Intent - Children / Mentally Incompetent

A

May be held liable if acted with requisite intent

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4
Q

Transferred Intent (3 Scenarios)

A

Applies when:

Different Tort vs Same Person

Same Tort vs Different Person

Different Tort vs Different Person

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5
Q

Battery (2)

A
  1. Defendant causes harmful or offensive contact ; and

2. Acts with intent to cause contact or the apprehension of that contact

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6
Q

Define: Battery - Causation

A

Act must result in contact

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7
Q

Define: Harmful

A

Causes injury, illness, pain

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8
Q

Define: Offensive

A

Objective Test

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9
Q

Offensive - Hypersensitivity

A

Conduct may be judged offensive to hypersensitive person if defendant knew of the hypersensitivity

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10
Q

Battery - Contact

A

May be direct, but could be contact of things attached to plaintff’s person

May also be indirect regarding having an ice bucket fall on someone

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11
Q

Battery - Intent

A

The contact must be intentional, not the offense

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12
Q

Battery - Transferred Intent?

A

Yes, applies to Battery

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13
Q

Battery - Damages (2)

A

No proof of harm is required, Nominal Damages may be recoverable

May also recover physical damages

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14
Q

Battery - Punitive Damages

A

May be available if defendant acted outrageously or with malice

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15
Q

Egg Shell Plaintiff

A

Defendant is liable for all harm flowing from battery, even if unforeseen

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16
Q

Battery - Consent Defense

A

Affirmative defense if there is express or implied consent

Implied –> eg athletic competitions

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17
Q

Define: Assault (2)

A

Defendant engages in an act that:

  1. Causes reasonable apprehension of an imminent harmful or offensive bodily contact; and
  2. Defendant intends to cause apprehension of such contact or to cause such contact itself
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18
Q

Assault - Contact?

A

Not required

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19
Q

Assault - Plaintiff’s Apprehension

A

Must be reasonable

Plaintiff must be aware of defendant’s action

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20
Q

Assault - Imminent

A

Must be without significant delay

Threat of future harm is insufficient

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21
Q

Mere Words

A

May constitute assault if defendant can carry out threat imminently and takes action designed to put plaintiff in state of apprehension

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22
Q

Assault - Intent (2)

A

Defendant must intend to cause either:

  1. An apprehension of imminent harmful or offensive conduct; or
  2. The contact itself
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23
Q

Assault - Damages

A

May recover nominal damages - no proof of physical harm required

Physical and punitive damages also available

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24
Q

IIED

A

Defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress

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25
Q

IIED - Intent (2)

A

Defendant must

  1. Intend to cause severe emotional distress; or
  2. Act with recklessness as to the risk of causing severe emotional distress
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26
Q

IIED - Extreme / Outrageous

A

Conduct that exceeds the possible limits of human decency as to be intolerable in a civilized society

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27
Q

IIED - Extreme / Outrageous - Examples

A
  1. When a person is in a position or power or authority

2. If there is a group that has heightened sensitivity (children / elderly)

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28
Q

IIED - Public Figures

A

Public figures cannot recover IIED unless:

  1. Statement was false; and
  2. Made with actual malice
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29
Q

IIED - Actual Malice

A

Reckless disregard for the truth

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30
Q

IIED - Public Plaintiffs Bar to Recovery

A

Public concern exception

Plaintiffs cannot recover IIED damages if what is being discussed is of public concern

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31
Q

IIED Transfer to Third Parties (3)

A
  1. Immediate Family
  2. Bystander
  3. Different Intentional Tort
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32
Q

IIED - Immediate Family

A

Immediate family who is present at the time of the conduct may recover

Does not require physical injury

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33
Q

IIED - Bystander

A

May recover if present at the time of the conduct, perceives the conduct

Requires physical injury

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34
Q

IIED - Different Intentional Tort

A

May recover for IIED if a person commits a different intentional tort to one person in the presence of another

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35
Q

IIED - Causation

A

Defendant’s action must be cause in fact of plaintiff’s harm

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36
Q

IIED - Damages

A

Must prove severe emotional distress beyond what a reasonable person should endure

Physical injury not required

Hypersensitivity liability only with knowledge

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37
Q

Elements: False Imprisonment (3)

A
  1. Defendant intends to confine or restrain another within fixed boundaries;
  2. The actions directly or indirectly result in confinement; and
  3. Plaintiff is conscious of the confinement or harmed by it
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38
Q

False Imprisonment - Bounded Area

A

Areas can be large

Areas need no be stationary

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39
Q

False Imprisonment - Methods of Confinement (6)

A
  1. Physical barriers
  2. Physical Force
  3. Threats
  4. Invalid invocation of legal authority
  5. Duress
  6. Refusing to provide safe means of escape
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40
Q

False Imprisonment - Duty Breach

A

Court may find false imprisonment when defendant has refused to perform a duty to help a person escape

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41
Q

False Imprisonment - Shopkeeper’s Privilege

A

Shopkeeper’s may detain a suspected shoplifted for a reasonable time in a reasonable manner

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42
Q

False Imprisonment - Time of Confinement

A

Immaterial

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43
Q

False Imprisonment - Intent (2)

A

Defendant must act:

  1. With purpose of confining plaintiff; or
  2. Knowing that the plaintiff’s confinement is substantially certain to result
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44
Q

Confinement due to Negligence

A

Defendant is not liable under intention tort of false imprisonment

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45
Q

False Imprisonment - Damages

A

Nominal and Actual damages available

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46
Q

Intentional Torts - Defense (6)

A
  1. Consent
  2. Self-Defense
  3. Defense of Others
  4. Defense of Property
  5. Parental Discipline
  6. Privilege of Arrest
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47
Q

Intentional Torts - Consent (2)

A
  1. Express

2. Implied

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48
Q

Intentional Torts - Express Consent

A

Plaintiff, by words of actions, manifest willingness to submit to defendant’s conduct

Defendant’s conduct may not exceed scope of consent

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49
Q

Intentional Torts Defense - Consent by Mistake / Fraud

A

Consent by Mistake - valid defense unless defendant caused the mistake or knew of it and took advantage

Consent by Fraud - invalid defense if fraud goes to essential matter; valid if collateral matter

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50
Q

Intentional Torts Defense - Implied Consent (3)

A

Plaintiff is silent (or otherwise nonresponsive) where their silence and continued participation can reasonably be construed as consent

  1. Emergencies
  2. Athletic Contest
  3. Mutual Assent to Combat
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51
Q

Intentional Torts Defense - Consent Capacity

A

Incapacity may weaken validity of consent

  1. Youth
  2. Intoxication
  3. Mental
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52
Q

Intentional Torts Defense - Self-Defense (4)

A

Use of reasonable force - proportionate force to defend against offensive contact or bodily harm

Duty to Retreat

Initial Aggressor

Injuries to Bystanders

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53
Q

Intentional Torts Defense - Duty to Retreat

A
  1. May use deadly force after retreat

2. Usually may use proportionate force without retreating

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54
Q

Intentional Torts Defense - Initial Aggressor

A

May not claim self-defense unless deadly force is used against them in retaliation

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55
Q

Intentional Torts Defense - Injuries to Bystanders

A

Person acting in self-defense is not liable for injuries to bystanders if injury is accidental and the actor was not negligent toward the bystander

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56
Q

Intentional Torts Defense - Defense of Property (4)

A
  1. Reasonable Force - permitted if person reasonably believes it necessary to prevent tortious harm to the property
    2a. Deadly Force - cannot be used
    2b. Can never use mechanical traps
    3a. May use reasonable force to reclaim property wrongfully taken - must ask for it back first
    3b. If lawfully taken, must only use peaceful means to reclaim property
  2. Force to reclaim land

Common Law - reasonable force

Modern Rule - peaceful means only

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57
Q

Intentional Torts Defense - Parental Discipline

A

Reasonable force permitted to discipline children

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58
Q

Intentional Torts Defense - Privilege of Arrest (2)

A
  1. Private Citizen

2. Police

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59
Q

Intentional Torts Defense - Arrest - Citizen

A

Reasonable force permitted in the case of felony if:

  1. Felony was actually committed; and
  2. Arresting party has reasonable grounds to suspect that person committed the felony
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60
Q

Intentional Torts Defense - Arrest - Citizen - Mistakes

A

Mistake OK - identity of felon

Mistake Not OK - if a felony was committed

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61
Q

Intentional Torts Defense - Arrest - Police

A

Must reasonably believe that a felony has been committed and that the person arrested
committed it

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62
Q

Intentional Torts Defense - Arrest - Police - Mistakes

A

Mistake OK - if felony was committed

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63
Q

Misdemeanor Arrest - Citizen

A

Only if there is breach of the peace

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64
Q

Misdemeanor Arrest - Police

A

Only is misdemeanor has been committed in their presence

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65
Q

Trespass to Chattels

A

Intentional interference with plaintiff’s right to possess personal property by:

  1. Dispossessing plaintiff of chattel;
  2. Using or intermeddling with the plaintiff’s chattel; or
  3. Damaging the chattel
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66
Q

Trespass to Chattels - Intent

A

Requires intent to do the interfering acts; not required to intend to interfere

Mistake is not valid defense

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67
Q

Trespass to Chattels - Damages

A

Recover Actual Damages - damages resulting from the loss of use or cost of repair

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68
Q

Conversion

A

Intentionally committing an act depriving the plaintiff of possession of their chattel in a manner so serious as to deprive the plaintiff entirely of the use of that chattel

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69
Q

Conversion - Intent

A

Defendant must only intend to commit the act that interferes

Mistake invalid

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70
Q

Conversion - Damages

A

Plaintiff can recover the chattel’s full value at time of conversion

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71
Q

Trespass to Chattels vs Conversion (5)

A

Courts consider:

  1. Duration and extent of interference
  2. Defendant’s intent to assert a right inconsistent with the rightful possessor
  3. Defendant’s good faith
  4. Expense of inconvenience to plaintiff
  5. Extent of the harm
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72
Q

Trespass to Land

A

Defendant intentionally causes a physical invasion of someone’s land

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73
Q

Trespass to Land - Intent

A

Defendant must have intent to enter the land or cause the physical invasion

Intent to commit wrongful trespass not required

Mistake invalid

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74
Q

Trespass to Land - Physical Invasion

A

Include causing objects to invade the land

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75
Q

Trespass to Land vs Nuisance

A

Nuisance - May or may not involve physical intrusion

Trespass - Always includes physical intrusion

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76
Q

Trespass to Land - Rightful Plaintiff

A

Anyone in possession of property can bring action, not just an owner

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77
Q

Trespass to Land - Damages

A

No proof of actual damages required

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78
Q

Trespass to Land - Necessity Defense

A

Available to a person who enters land of another or interferes with an individual’s personal property to prevent an injury or other severe harm

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79
Q

Trespass to Land - Private Necessity Defense

A

Defendant must pay for actual damages caused

D not liable for nominal damages

Landowner may not use force to exclude the person

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80
Q

Trespass to Land - Public Necessity Defense

A

Occurs when private property is destroyed when necessary to protect a large number of people from public calamities

No liability for damages

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81
Q

Nuisance - Private

A

Activity that substantially and unreasonably interferes with another’s use and enjoyment of land

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82
Q

Nuisance - Private - Interference (4)

A

Unreasonable interference:

  1. Annoying to the ordinary objective person
  2. Hypersensitive people may not have cause of action
  3. Someone who is not actually bothered may still have an action

4 Interference vs Utility

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83
Q

Not Nuisance

A

Blocking sunlight or obstructing view not considered nuisance

Spite wall exception

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84
Q

Nuisance - Private - Defense (4)

A
  1. Regulatory compliance, not complete defense - subject to reasonable evidence
  2. Coming to the nuisance - not complete defense
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85
Q

Nuisance - Public

A

Unreasonable interference with a right common to the public as a whole

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86
Q

Nuisance - Public - Public Official

A

Can bring action on behalf of the public to abate nuisance

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87
Q

Nuisance - Public - Private Citizen

A

Generally cannot recover unless the individual has been harmed in a unique way, different than the public

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88
Q

Negligence (4)

A

Duty
Breach
Causation
Damages

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89
Q

Negligence - Duty

A

Obligation toward another

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90
Q

Negligence - Breach

A

Failure to honor obligation

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91
Q

Negligence - Causation

A

But For Cause AND Proximate Cause

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92
Q

Negligence - Damages

A

Loss suffered

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93
Q

Negligence - Is there Duty?

A

Duty of care is generally owed to all persons who may foreseeably be injured by D’s conduct

No duty to act affirmatively, even if the failure to act appears unreasonable

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94
Q

Scope of Duty - Foreseeability of Harm

A

Does not affirmatively create Duty

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95
Q

Scope of Duty - Foreseeability of Plaintiff

A

No liability to an unforeseeable plaintiff

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96
Q

Scope of Duty - Foreseeability of Plaintiff - Cardozo

A

Majority View

Duty is owed to a plaintiff only if the plaintiff is a member of the class of persons who might foreseeably be harmed by the conduct

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97
Q

Scope of Duty - Foreseeability of Plaintiff - Andrews

A

Minority View

Any time conduct can harm someone, there is a duty to everyone

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98
Q

Crime Victims

A

Considered foreseeable plaintiffs in certain circumstances

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99
Q

Affirmative Duty to Act - Rescuers

A

A person who comes to the aid of another; foreseeable victim

If initiating recuse, has duty of reasonable care in performance of aid or rescue

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100
Q

Affirmative Duty to Act - Placing Others in Peril

A

If you place another in peril, there is affirmative duty to act

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101
Q

Affirmative Duty to Act - Authority

A

A person with the ability and authority to control another has a duty to exercise reasonable control

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102
Q

Affirmative Duty to Act - Relationship

A

D has special relationship with plaintiff

Common Carrier / Passenger

Innkeeper / Guest

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103
Q

Negligence - Standard of Care

A

Objective Test

Reasonably prudent person under the circumstances

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104
Q

Negligence - Standard of Care - Mental / Emotional Characteristics

A

Objective Test

Defendant is presumed to have average mental abilities and knowledge

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105
Q

Negligence - Standard of Care - Physical Characteristics

A

Modified Standard

Defendant is compared to persons with like characteristics

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106
Q

Negligence - Standard of Care - Intoxication

A

Objective Standard

Drunks held to standard of sober

Unless involuntarily intoxicated

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107
Q

Negligence - Standard of Care - Children

A

Modified Standard

Reasonable child of similar age, intelligence, experience

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108
Q

Negligence - Standard of Care - Exception

A

Held to Modified Standard unless engaging in an adult activity

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109
Q

Negligence - Standard of Care - Common Carriers / Innkeepers

A

Traditional Rule - Utmost Care, elevated standard

Modern Rule - Liable for ordinary negligence

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110
Q

Negligence - Standard of Care - Automobile Drivers

A

Traditional Rule - Drivers liable only for grossly negligent, wanton, or willful misconduct

Modern Rule - Driver must act with Reasonable Care

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111
Q

Negligence - Standard of Care - Bailors / Bailees

A

Bailment - taking temporary possession of another’s property

Common Law:

  1. Bailor must warn gratuitous bailee of known dangerous conditions
  2. Bailee receives sole benefit, bailee has lesser duty
  3. If bailee receives benefit, then they have higher duty to care
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112
Q

Negligence - Standard of Care - Emergency Situations

A

Reasonable Person under the same circumstances

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113
Q

Negligence - Standard of Care - Possession of Land

A

Traditional Rule:

Invitee (Hi)
Licensee (Mid)
Trespasser (Lo)

California Rule:

Reasonable Care under the circumstances

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114
Q

Trespasser

A

Someone on land without consent or privilege

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115
Q

Trespasser - Duty of Care

A

Property owner must refrain from willful, wanton, intentional, or reckless misconduct

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116
Q

Trespasser - Duty of Care - Undiscovered Trespasser

A

No duty owed

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117
Q

Trespasser - Duty of Care - Discovered / Anticipated Trespasser

A

Warn and protect from hidden dangers

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118
Q

Trespasser - Duty of Care - Attractive Nuisance Doctrine (5)

A

May be liable for injuries to children trespassing on land if:

  1. An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass
  2. Land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm
  3. The children, because of age, do not discover or cannot appreciate the danger
  4. The utility of maintaining the condition is slight compared to the risk of injury
  5. The land possessor fails to exercise reasonable care
119
Q

Trespasser - Duty of Care - Flagrant Trespasser

A

Lesser duty owed

120
Q

Licensees

A

Enters land with express or implied permission

121
Q

Licensees - Standard of Care

A

Duty to make property reasonably safe or warn licensees of concealed dangers

No duty to inspect property

122
Q

Invitees

A

Someone who comes onto land for material or economic purpose

123
Q

Invitee - Public

A

Land is held open to the public

124
Q

Invitee - Business Visitor

A

For purpose connected to business dealings with possessor

125
Q

Licensees - Standard of Care (3)

A

Reasonable care to:

  1. Inspect property;
  2. Discover unreasonably dangerous conditions; and
  3. Take reasonable steps to protect
126
Q

Licensees - Standard of Care - Delegation?

A

Non-delegable duty

127
Q

Standard of Care - California Rule

A

Reasonable care for all persons on property

Flagrant trespassers - only duty owed is not to act with intentional, willful, or wanton manner to cause physical harm

128
Q

Standard of Care - Landlord / Tenant (3)

A
  1. Maintain safe common areas;
  2. Warn of hidden dangers; and
  3. Repair hazardous conditions
129
Q

Off-Premises Victims

A

No liability for natural conditions

Trees in urban areas exception

Must prevent unreasonable risk or harm re: artificial conditions

Must exercise reasonable care in conducting activities on land

130
Q

Negligence - Breach of Duty of Care (3)

A

Generally, violation of the relevant standard of care

Traditional Rule - Reasonable person standard

Cost Benefit Analysis - Hand Formula

Burden vs Probability of Harm x Severity of Loss

131
Q

Negligence - Breach - Specific Rules - Custom

A

Generally admissible but not dispositive

132
Q

Negligence - Breach - Specific Rules - Custom - Professionals

A

Custom is dispositive

133
Q

Negligence - Breach - Specific Rules - Custom - Physicians

A

Traditional Rule - Physician in same or similar locality

Modern Trend - National standard

134
Q

Negligence - Breach - Specific Rules - Custom - Physicians - Informed Consent

A

Patients must give informed consent

135
Q

Negligence - Breach - Specific Rules - Custom - Physicians - Informed Consent Exceptions (5)

A
  1. Risks are common known
  2. Patient is unconscious
  3. Patient waives / refuses information
  4. Patient is incompetent
  5. Patient would be harmed by disclosure
136
Q

Negligence - Breach - Statute (Negligence Per Se) (5)

A
  1. Law imposes duty for the protection and benefit of others
  2. Defendant violates said statute
  3. Plaintiff must be in the class of people intended to be protected by statute
  4. Accident must be the type that the statute was intended to protect against
  5. Harm was caused
137
Q

Negligence - Breach - Statute - Breach by Plaintiff

A

Constitutes contributory or comparative negligence

138
Q

Negligence - Breach - Compliance with Statute

A

You can be compliant and still negligent

Drive recklessly at the speed limit

139
Q

Negligence - Breach - Excuse

A
  1. Compliance with the statute may be more dangerous
  2. Compliance was impossible, emergency
  3. Incapacity
140
Q

Negligence - Res Ipsa Loquitor

A

Infer negligence from circumstantial evidence

141
Q

Negligence - Res Ipsa Loquitor - Traditional Rule (3)

A
  1. Accident was the kind that does not ordinarily occur in the absence of negligence
  2. Caused by agent or instrumentality in the exclusive control of the hotel
  3. Was not due to any action on part of the Plaintiff
142
Q

Negligence - Medical Malpractice

A

When medical personnel act negligently to harm a patient, some Jxs will hold all Ds jointly nd severally liable unless they can exonerate

143
Q

Negligence - Products Liability

A

Courts ignore exclusivity requirement when the defect clearly originated upstream of the package’s wrapping

144
Q

Negligence - Comparative Fault Jx

A

Only loosely apply third element

145
Q

Negligence - Third Restatement (2)

A
  1. Accident is the type of accident that ordinarily happens as a result of negligence of a class of actors
  2. Defendant is a member of that class
146
Q

Res Ipsa - Procedural Effect (3)

A

Allows the case to go to a jury

Avoids directed verdict in defendant’s favor

Jury can infer negligence, but not required to

147
Q

Negligence - Cause in Facts (2)

A
  1. But For Case

2. Proximate Cause

148
Q

Negligence - But For Cause

A

But For Test - Plaintiff must show that the injury would not have occurred but for the defendant’s negligence

149
Q

Negligence - Causation - Multiple Tortfeasors / Possible Causes (3)

A
  1. Substantial Factor Test
  2. Alternative Causation
  3. Concert of Action
150
Q

Negligence - Causation - Multiple Tortfeasors / Possible Causes - Substantial Factor Test

A

Whether D’s conduct was substantial factor in causing harm

151
Q

Negligence - Causation - Multiple Tortfeasors / Possible Causes - Alternative Causation

A

Shift burden to D’s to exonerate themselves

152
Q

Negligence - Causation - Multiple Tortfeasors / Possible Causes - Concert of Action

A

If two D’s are acting together to cause harm, both will be held jointly and severally liable

153
Q

Negligence - Causation - Lost Chance of Recovery

A

Traditional Rule - Under 50% chance of survival, no liability since patient may die anyway

Rule - If physician negligently reduces the plaintiff’s survival, plaintiff can recover lost chance of recovery

154
Q

Negligence - Causation - Proximate Cause

A

Legal Causation

Person is liable for the risks that made the conduct negligent - issue is whether the injury has occurred was within the scope of the defendant’s breach

155
Q

Negligence - Proximate Cause - Foreseeability of Harm

A

Majority Rule - no liability for unforeseeable harm

156
Q

Intervening Cause

A

Do not break causal chain

157
Q

Superseding Cause

A

Will break causal chain

158
Q

Third Party Criminal Acts

A

May break causal chain, but may not if they are deemed foreseeable

159
Q

Negligence - Proximate Cause - Extent of Damages

A

Egg Shell P Rule

160
Q

Negligence Damages (4)

A
  1. Actual / Compensatory Damages
  2. Mitigation Damages
  3. Personal Injury
  4. Property Damage
161
Q

Negligence Damages - Actual / Compensatory Damages

A

Make P whole again

Physical injury

May also recover parasitic damage if suffer emotional damages

162
Q

Negligence Damages - Mitigation Damages

A

P must take steps to mitigate damages

163
Q

Negligence Damages - Personal Injury

A

May recover:

  1. Medical expenses, both past and future
  2. Lost income, reduced earning capacity
  3. Pain, suffering, past / future
164
Q

Negligence Damages - Property Damages

A

P may recover the difference in the market value of the property before and after the injury

165
Q

Collateral Source Rule - Traditional Rule

A

Benefits or payments to P from outside sources are not credited against liability of any D

Evidence of such payments are not admissible at trial

166
Q

Collateral Source Rule - Modern Rule

A

Most states not have statutes that modify collateral source rules to avoid double recovery

167
Q

Negligence Damages - Punitive Damages

A

Punish and deter future conduct

May be available if D acted willfully, wantonly, recklessly, or with malice; or if an inherently malicious tort is involved

SCOTUS - must be within 1x - 9x

168
Q

Negligence - Pure Emotional Harm - NIED - Traditional Rule

A

P could not recover absent physical injury

169
Q

Negligence - Pure Emotional Harm - NIED - Modern Rule (4)

A

May recover now:

  1. Zone of Danger
  2. Bystander Recovery
  3. Special Relationship
  4. Physical Manifestation
170
Q

Negligence - Pure Emotional Harm - NIED - Zone of Danger (2)

A

May recover if:

  1. Plaintiff is within zone of danger of the threatened physical impact; and
  2. threat of physical impact caused emotional distress
171
Q

Negligence - Pure Emotional Harm - NIED - Bystander Recovery (3)

A

May recover if:

  1. Bystander is closely related to the person injured;
  2. Was present at scene of injury; and
  3. Personally observed the injury
172
Q

Negligence - Pure Emotional Harm - NIED - Special Relationship

A

Eg:

Negligent handling of loved one’s corpse

Negligent medical information (misdiagnosis)

173
Q

Negligence - Pure Emotional Harm - NIED - Physical Manifestation

A

Most Jxs require some physical manifestation of distress (nausea, insomnia, miscarriage)

174
Q

Negligence - Pure Economic Loss

A

P who suffers only economic loss without any related personal injury or property damage cannot recover under negligence theory

175
Q

Negligence - Wrongful Death

A

Brought by decedent’s spouse or representative to recover losses suffered by spouse or rep

Marital consortium

176
Q

Negligence - Survival Action

A

Brought by representative of decedent’s estate on behalf of decedent for claims that the decedent would have had at the time of death

177
Q

Negligence - Recovery for Loss Arising from Injury to Family Members

A

Family members can typically claim loss of companionship or consortium

178
Q

Wrongful Life Action

A

Claim by a child for D’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect

Damages usually limited to special damages attributable to child’s disability

179
Q

Wrongful Birth Action

A

Claim by parents for D’s negligent failure to properly perform a contraceptive procedure or diagnose congenital defect

Child with disability - may be able to recover for damages for additional medical expenses for caring for that child, sometimes recover emotional distress

180
Q

Negligence - Vicarious Liability

A

When one person is held liable for another’s negligence

181
Q

Negligence - Joint and Several Liability

A

Responsible party can still be held negligent, but so is there employer

182
Q

Negligence - Indemnification

A

Party held vicariously liable may seek indemnification from the party who was directly responsible

183
Q

Negligence - Respondeat Superior

A

Employers are held vicariously liable for the negligence of an employee within the scope of their employment

184
Q

Negligence - Respondeat Superior - Intentional Torts

A

Employers are generally not liable for the intentional torts of their employees unless the tort is within the scope of their employment or benefits the employer

185
Q

Negligence - Respondeat Superior - Frolick

A

Frolick - Major deviation from scope of employment

Employer NOT liable

186
Q

Negligence - Respondeat Superior - Detour

A

Minor deviation from scope of employment

Employer liable

187
Q

Torts Committed by Independent Contractors

A

Employers generally not liable for those torts

188
Q

Torts Committed by Independent Contractors - Exception

A

If employer retains ability to control how someone works, the controlled party will be treated as an employee

189
Q

Vicarious Liability - Independent Contractors (2)

A
  1. Non-delegable Duties

2. Apparent Agency Doctrine

190
Q

Vicarious Liability - Independent Contractors - Non-Delegable Duty (2)

A
  1. Inherently dangerous activities
  2. Duties to the public or specific plaintiffs for certain types of work;
  3. Shopkeepers have duty to keep premises safe for the public
191
Q

Vicarious Liability - Independent Contractors - Apparent Agency Doctrine

A

Independent Contractor will be treated as an employee if:

  1. Injured person accepted the IC’s services based on reasonable belief that the IC was an employee, based on manifestations from that employee; and
  2. The IC’s negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability
192
Q

Vicarious Liability - Business Partners

A

Can be liable for torts of other business partners committed within the scope of the business’s purpose

193
Q

Vicarious Liability - Automobile Owners (3)

A
  1. Negligent Entrustment
  2. Family Purpose Doctrine
  3. Owner Liability Statutes
194
Q

Vicarious Liability - Automobile Owners - Negligent Entrustment

A

Owner may be directly liable for negligently entrusting a vehicle to someone who is not in position to care for it

195
Q

Vicarious Liability - Automobile Owners - Family Purpose Doctrine

A

Owner may be vicariously liable for the tortious acts of family members driving the car with permission

196
Q

Vicarious Liability - Automobile Owners - Owner Liability Statutes

A

Owner may be vicariously liable for the tortious acts of anyone driving the car with permissions

197
Q

Vicarious Liability - Parents and Children

A

Parents are generally not vicariously liable for their minor children’s torts

198
Q

Vicarious Liability - Negligence of Parents

A

Parents can be liable for their own negligence with respect to their children’s conduct

199
Q

Vicarious Liability - Dram Shop

A

Bar owners, bartenders, social hosts liable for injuries caused when people drink too much alcohol and injure others

Direct liability for server’s negligence in serving

200
Q

Immunities - Federal Government - Traditional Rule

A

State and federal governments are immune from tort liability

201
Q

Immunities - Federal Government - Modern Rule

A

Federal Tort Claims Act - government may be sued for certain torts

Fed maintains immunity for enumerated torts, discretionary functions, and traditional government activities

202
Q

Immunities - State Government

A

Immunity is generally waived

Government Functions (police, courts, teacher) - Immune

Proprietary Functions (private employment) - Immunity is waived

203
Q

Immunities - Government Officials (3)

A

Discretionary Function - Immune

Ministerial Function - Waived

204
Q

Intra-Family Immunities

A

Largely eliminated; a family member can be sued for negligently hurting another family member

Core Parenting - immunity still applies

205
Q

Charitable Immunity

A

Eliminated

206
Q

Joint / Several Liability

A

Two or more defendants are each liable for a single and indivisible harm to P;

Each D is subject to liability to P for the entire harm

P can recover all damages from any negligent party

207
Q

Negligence Defenses (4)

A
  1. Contributory Negligence
  2. Comparative Fault
  3. Imputed Contributory Negligence
  4. Assumption of Risk
208
Q

Negligence Recovery Frameworks (4)

A
  1. Contributory Negligence
  2. Comparative Fault
  3. Pure Comparative Negligence
  4. Modified Comparative Negligence
209
Q

Contributory Negligence

A

P’s negligence is complete bar to recovery

210
Q

Pure Comparative Negligence

A

P’s recovery is reduced by the amount they were negligent

211
Q

Modified Comparative Negligence

A

P cannot recover if they are over 50% negligent

212
Q

Last Clear Chance Doctrine

A

Allows negligent P to recover upon showing that the D had the last clear chance to avoid injuring P but failed to do so

Invalid defense for intentional torts

213
Q

Multiple Ds - Modified Comparative Negligence

A

P’s negligence is compared to sum total of all D’s negligence

214
Q

Imputed Contributory Negligence

A

One party’s negligence is imputed on another party

215
Q

Imputed Contributory Negligence - Does Not Apply

A
  1. Child P whose parent’s negligence was a contributing cause of their harm, in a suit against a third party
  2. Married P whose spouse was contributorily negligent in causing the harm, in a suit against a third party
216
Q

Assumption of the Risk

A

When a party knowingly and willingly embraces a risk for some purpose of their own

Express / Implied

217
Q

Express Assumption of the Risk

A

Typically a contractual waiver

  1. Is the waiver clear?
  2. Is the waiver enforceable?
218
Q

Exculpatory Clauses - Unenforceable (5)

A
  1. Waiver disclaims liability for reckless or wanton misconduct
  2. There is gross disparity in bargaining power
  3. Party seeking to enforce provision offers services of great importance to the public
  4. Provision is subject to contract defenses
  5. Enforcement would be against public policy
219
Q

Implied Assumption of the Risk

A
  1. Participants in and spectators of athletic events

2. Unreasonably proceeding in the face of known, specific risk

220
Q

Unreasonably proceeding in the face of known, specific risk

A
  1. Contributory Negligence Jx - total bar to recovery

2. Comparative Fault Jx - merged into comparative fault analysis and reduces recovery

221
Q

Strict Liability (3)

A

D is liable no matter how careful they were

  1. Abnormally Dangerous Activities
  2. Wild Animals
  3. Defective Products
222
Q

Abnormally Dangerous Activities

A

D engaged in an abnormally dangerous activity is strictly liable for personal injuries or property damage resulting

223
Q

Abnormally Dangerous Activities - Factors (4)

A
  1. Foreseeable and highly significant risk of harm even when there is due care;
  2. Severity of the harm resulting from the activity;
  3. Appropriateness of the location;
  4. Value to community
224
Q

Abnormally Dangerous Activities - Scope of Liability

A

D is liable for the harms that flow from the risk that made the activity dangerous

225
Q

Wild Animals

A

Species or class that are not customarily kept in the service of humankind

226
Q

Wild Animals - Scope (2)

A
  1. Dangerous Propensity - strictly liable for their dangerous propensities
  2. Injuries caused to licensees and invitees - strict

Trespassers - not strictly liable

227
Q

Domestic animals

A

If the owner knows the animal to be dangerous or has reason to know or dangerous propensities, owner is strictly liable

228
Q

Trespassing Animals

A

Owner of any animal is strictly liable for reasonably foreseeable damage caused by their animal while trespassing on another’s land

229
Q

Strict Liability - Defenses (3)

A

Contributor Negligence - Not full bar

Comparative Negligence -

Assumption of Risk - full bar

230
Q

Products Liability - Claims (3)

A
  1. Negligence
  2. Strict Liability for Defective Products
  3. Breach of Warranty
231
Q

Products Liability - Strict Liability Claims (3)

A
  1. Manufacture Defects
  2. Design Defect
  3. Failure to Warn
232
Q

Products Liability - Strict Liability Claim Elements (3)

A
  1. Product was defective;
  2. Defect existed when product left D’s control; and
  3. Defect caused P’s injury when product was used in foreseeable manner
233
Q

Manufacturing Defect (2)

A
  1. Product deviated from its intended design

2. Product was not conform to manufacturer’s own specs

234
Q

Design Defect - Consumer Expectation Test

A

Consumer Expectation test - product is defected in design if it is less than the ordinary consumer would expect

235
Q

Design Defect - Risk Utility Test

A

Risk Utility Test - Product’s design risks outweigh benefits

Must show reasonable alternative

236
Q

Failure to Warn

A

Liability if a foreseeable risk that is not obvious to an ordinary consumer is overlooked by manufacturer

237
Q

Failure to Warn - Learned Intermediary

A

Manufacturer of prescription drugs must warn the prescribing physician

238
Q

Failure to Warn - Inference of Defect

A

Courts may allow proof of defect through circumstantial evidence if the defect causes the product to be destroyed

239
Q

Product Liability - Plaintiffs

A

No privity requirement

Anyone foreseeable injured by a defective product - purchasers, other users, bystanders

240
Q

Product Liability - Defendants

A

Anyone who sells the product when it is defective is potentially strictly liable

Casual sellers are exempt but may be liable for negligence

Seller may seek indemnification

241
Q

Products Liability - Strict Liability - Damages

A

Available: Personal injury or property damage

Pure economic loss generally not permissible

242
Q

Products Liability - Strict Liability - Defenses (8)

A

Contributory Neg - Usually unavailable

Comparative Neg - will reduce recovery

Assumption of Risk - full bar if P knew of the risks and voluntarily carried on

Misuse, Modification, Alteration - May recover so long as the alteration was foreseeable

Substantial Change in Product - full bar

Compliance with Gov Standards - admissible, not dispositive to reduce

State of the Art - complete bar

Disclaimers, Limitations, Waivers - generally does not bar recovery

243
Q

Products Liability - Strict Liability - Warranties

A

May be brought up and down the distribution chain

Privity not required

244
Q

Products Liability - Strict Liability - Implied Warranties (2)

A
  1. Merchantability - product is suitable for ordinary purposes for which it is sold
  2. Fitness for Particular Purpose - seller know the particular purpose for which the product is being sold, buyer relies
245
Q

Products Liability - Strict Liability - Express Warranties

A

Affirmation of fact or promise by seller that is part of the basis of the bargain

246
Q

Products Liability - Strict Liability - Warranties Defenses

A
  1. Defenses via contract
  2. Tort Defenses

Assumption of Risk
Comparative Fault
Contributory Negligence
Product Misuse

247
Q

Defamation - Elements (4)

A

Generally, D:

  1. Made defamatory statement;
  2. That is of or concerning P
  3. Statement was published to a third party who understood its defamatory nature;
  4. P’s reputation is damaged
248
Q

Defamatory Language

A

Language that diminishes respect, esteem, or good will toward P, or deters association with P

249
Q

Defamatory Language - Falsity Requirement

A

The statement must be false in order to be actionable

Opinions are not actionable

250
Q

Defamatory Language - Of or Concerning P

A

Objective Test

Reasonable person must believe that the defamatory language referred to this particular P

Groups may bring action only if the group is so small or the context can reasonably be understood to refer to member within the group

251
Q

Defamatory Language - Publication

A

Statement must be communicated to a third party

People who disseminate may also be liable for defamation

252
Q

Defamatory Language - Constitutional Requirements - Plaintiff Types (3)

A
  1. Public Official
  2. Public Figure
  3. Private Individuals
253
Q

Defamatory Language - Constitutional Requirements - Plaintiff Types - Pubic Official

A

A person who has substantial responsibility or control over a government office, includes political candidates

254
Q

Defamatory Language - Constitutional Requirements - Plaintiff Types - Pubic Figure (2)

A
  1. General Purpose Public Figure - a person of persuasive power and influence in society
  2. Limited Purpose Public Figure - a person who thrusts themselves into a particular public controversy
255
Q

Defamatory Language - Constitutional Limitations - Public Officials / Figures

A

P must prove that the person who made the statement either knew that the statement was false or acted with reckless disregard for the truth

256
Q

Defamatory Language - Constitutional Limitations - Private Individuals (2)

A

Matter of Public Concern - P must prove that the statement is false and that the person who made the statement was negligent

Not Public Concern - Unclear if constitutional limits apply; state need not require proof of negligence

257
Q

Libel

A

Written, printed, or recorded statement

258
Q

Slander -

A

Spoken statement

259
Q

Libel - Damages

A

P may recover general damages without proof of measurable har

260
Q

Slander - Damages

A

P must prove special damages (requires economic loss)

261
Q

Slander Per Se (4)

A
  1. Commission of serious crime
  2. Unfitness for trade or profession
  3. Loathsome disease
  4. Severe sexual misconduct
262
Q

Constitutional Limitations - Libel / Slander

A

Private Individuals - Matter of Public Concern: may recover actual damages unless they show actual malice, may then recover general damages

Private Individual Not of Public Concern - recover general damages without proving actual malice

263
Q

Defamation - Defense (3)

A
  1. Truth
  2. Consent
  3. Privileges
264
Q

Defamation - Defense - Trust

A

Absolute defense - kills element of defamation

265
Q

Defamation - Defense - Consent

A

Absolute defense - consent, cannot sue

266
Q

Defamation - Defense - Privileges (2)

A
  1. Absolute Privileges

2. Conditional Privileges

267
Q

Defamation - Defense - Privileges - Absolute (4)

A

Speaker is immune if statements are made:

  1. In course of judicial proceeding;
  2. In the course of legislative proceedings;
  3. Between spouses; and
  4. Required publication by radio and TV
268
Q

Defamation - Defense - Privileges - Conditional

A

Statement is made in good faith pursuant to some duty or responsibility

  1. Interest of defendant
  2. Interest of the recipient of the statement
  3. Affecting some important public interest
269
Q

Invasion of Privacy (3)

A
  1. Applies to people, not companies
  2. Typically terminates upon death of P
  3. Includes four separate causes of action
270
Q

Invasion of Privacy Actions - Intrusion Upon Seclusion

A

D intrudes upon P’s private affairs in a manner that is objectionable to the reasonable person

271
Q

Invasion of Privacy Actions - False Light (3)

A
  1. D makes public statement about P
  2. Places P in false light,
  3. Is highly offensive to a reasonable person
272
Q

Invasion of Privacy Actions - Appropriate of the Right to Publicity (3)

A
  1. Someone appropriates another’s name or likeness
  2. For D’s advantage without D’s consent
  3. Causes injury
273
Q

Invasion of Privacy Actions - Public Disclosure of Private Facts

A
  1. D publishes a matter concerning the private life of another; and
  2. The matter is publicized in highly offensive matter to reasonable person; and
  3. Is not a legitimate concern to the public
274
Q

Invasion of Privacy Actions - Damages

A

P need not prove special damages

Emotional or mental distress sufficient

275
Q

Invasion of Privacy Actions - Defenses (3)

A
  1. Qualified / Absolute Privilege - Applicable to False Light / Public Disclosure

Consent - applicable to Invasion of Privacy torts

Truth - Invalid defense to Privacy torts

276
Q

Intentional (Fraudulent) Misrepresentation (6)

A
  1. False Representation
  2. Scienter
  3. Intent
  4. Causation
  5. Justifiable Reliance
  6. Damages
277
Q

Intentional Misrepresentation - False Representation (4)

A
  1. Must be about a material fact
  2. Can involve deceptive or misleading statements
  3. Can arise through concealing a material fact
    4a. No duty to disclose material facts to other parties
    4b. May have duty if:
    - There is a fiduciary relationship
    - The other party is likely to be misled by statements the D made earlier; or
    - D is aware that he other party is mistaken about the basic facts of the transaction and custom suggests that disclosure should be made
278
Q

Intentional Misrepresentation -Scienter

A

D has to know that the representation is false or acts with reckless disregard for the truth

279
Q

Intentional Misrepresentation - Intent

A

D must intend to induce P to act in reliance on the misrep

280
Q

Intentional Misrepresentation - Causation

A

Misrep must have caused P to act or refrain from acting

281
Q

Intentional Misrepresentation - Justifiable Reliance

A

Reliance is not justifiable if the facts are obviously false or clear that D was stating an opinion

282
Q

Intentional Misrepresentation - Damages (4)

A

P must prove actual, economic, pecuniary loss

Nominal damages generally unavailable

Majority - recovery is “benefit of the bargain” delta actual value vs value received had the misrep been true

Minority - only allow out of pocket expenses

283
Q

Negligent Misrepresentation (4)

A
  1. D provided false information to P
  2. P relies on D’s negligence
  3. During course of business
  4. P is in contractual relationship with D or P is third party known by D to be a member of a limited group for whose benefit the information is supplied
284
Q

Negligent Misrepresentation - Defenses

A

Negligence defenses may be raised

285
Q

Negligent Misrepresentation - Damages

A

P can recover reliance (out of pocket damages) and consequential damages if negligent rep is proven

286
Q

Intentional Interference with Contract (4)

A
  1. Valid contract existed between P and a third party (cannot be at-will);
  2. D knew of this contractual relationship;
  3. D intentionally interfered with contract, resulting in breach; and
  4. Damages result
287
Q

Intentional Interference with Contract - Interference

A

Interference must prevent fulfillment of obligation or substantially add to the burden of performance

D’s conduct must exceed bounds of fair competition

288
Q

Interference with Prospective Economic Advantage

A

D intentionally interferes with prospective business relationship or benefit b/t plaintiff and third party

No contract in place

Conduct must be wrongful

289
Q

Misappropriation of Trade Secrets (3)

A
  1. P owns information that is not generally known
  2. P has taken reasonable precautions to protect information;
  3. D acquires secret by improper means
290
Q

Injurious Falsehoods (2)

A
  1. Trade Libel

2. Slander of Title

291
Q

Trade Libel (5)

A
  1. Publication;
  2. False or derogatory statement
  3. With malice
  4. relating to P’s title to their business, quality of business, or quality of products;
  5. Causes special damages as a result
292
Q

Slander of Title (6)

A
  1. Publication;
  2. Public statement
  3. Derogatory to P’s title
  4. With malice
  5. Causes special damages as a result

6, Diminishes vale in eyes of third parties

293
Q

Malicious Prosecution

A

Institutes legal action for an improper purpose without probable cause

294
Q

Abuse of Process

A

D sets in motion legal procedure in proper form but has abused it to achieve ulterior motive

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