Torts Flashcards
what does liability for an intentional tort require?
voluntary act
intent
elements of the tort
causation
harm
lack of privilege or defense
how is intent established?
if D either desires that this act will cause the harmful result or knows with a substantial certainty that the result will follow.
can children and mentally incompetent persons be held liable for intentional torts?
Yes if the required intent is met.
what is transferred intent?
when D intends to commit one tort but commits a different tort against that same person or another person.
D’s intent is transferred to the second tort
is transferred intent limited?
Yes
assault battery false imprisonment trespass to land trespass to chattel
what are the torts against persons?
assault
false imprisonment
intentional infliction of emotional distress
battery
what are the torts against property?
trespass to land
respass to chattels
conversion
What is assault?
P experiences a reasonable apprehension of an immediate harmful or offensive contact
assault:
how do you determine if offensive or harmful contact exists?
if a reasonable person would regard it as offensive
exaggerated fears are no actionable unless D knew about that fear and used it to put P in apprehension
fear is NOT required ONLY an apprehension of a harmful or offensive contact
assault:
can words be assault?
No, words alone are insufficient
some sort of overt act is required
assault:
are actual damages required for assault?
NO
can recover nominal damages
what is battery
harmful or offensive contact with the victim or something closely connected with the victim.
battery
what type of standard is used?
reasonable person standard
battery:
what does can also consist of battery?
includes anything connected to the victim’s person
battery:
is direct touching required?
Not required for the tortfeasor or the victim
battery:
if D sets in motion a force that can bring about harm is that battery?
Yes!
example: throwing a baseball at someone
battery:
does P have to feel apprehension (fear)?
No, not required
false imprisonment
intentional act that causes a P to be confined or restrained to a bounded area against P’s will and the P knows of the confinement or is injured.
false imprisonment:
what is confinement?
confining by physical barriers
failing to release P where theD has a legal duty to do so
OR
asserting invalid legal authority
false imprisonment:
how much time is sufficient?
very brief time is okay
no specific duration of time is required
false imprisonment:
does P have a duty to resist?
No, if D makes a credible threat to use physical force
false imprisonment:
when is P considered not confined?
not confined if there is a reasonable means of escape that P is actually aware exists
false imprisonment:
does P have to be aware that they are being confined?
Yes, they must have knowledge of confinement or actual harm
false imprisonment:
what is shopkeeper’s privilege?
defense
shopkeeper’s privilege requires detention if:
in a reasonable manner
for a reasonable period of time
based on a relationship belief as to theft
intentional infliction of emotional distress
intentional or reckless act amounting to extreme and outrageous conduct that causes the P severe mental distress
intentional infliction of emotional distress:
is reckless conduct sufficient?
Yes if D acts in deliberate disregard of a high degree of probability that emotional distress will follow
intentional infliction of emotional distress
is extreme and outragous conduct sufficient?
beyond the bounds of decency
conduct a civilized society would not tolerate
is extreme and outragous conduct sufficient?
mental distress must be…..
severe and substantial
more than a reasonable person could be expected to endure
trespass to land
intentional act is a physical intrusion of property
intentional entry is all that is required– NO intent to cause harm is required
trespass to land
must P be the owner of the land?
P must be in actual possession or have the right to immediate possession of that land (not ownership)
trespass to land
is mistake a defense
no, D need not know they are trespassing
trespass to land
what if P causes a 3rd person to enter onto their land
is this trespass to land?
Yes,
satisfied if P causes a 3rd person to enter onto P’s land or remains upon the P’s land when under a legal duty to leave.
trespass to land
what is included in P’s land?
the area both above and below the surface
trespass to land
what type of damages is D liable for?
nominal damages
actual harm
trespass to chattel
intentional act that interferes with the P’s chattel causing harm.
trespass to chattel
what is chattel?
tangible personal property or intangible property that has a physical representation
trespass to chattel
is mistake a defense?
No
trespass to chattel
what is considered an interference?
dispossession or intermeddling
trespass to chattel
when may trespass to chattel amount to conversion?
when it is a more serious interference
conversion
intentional act that causes the destruction or serious interference with the plaintiff’s chattel
conversion
what is the difference between conversion and trespass to chattel?
the interference is more serious and includes:
greater use of the chattel
AND
a longer period of interference
conversion
is mistake a defense?
no
conversion
what is P entitled to in damages?
FMV at the time of the conversion \+ consequential damages OR replevin
conversion
what if D offers to return the chattel?
is not a defense and does not alleviate the conversion
what are defenses to intentional torts?
self-defense defense of others defense of property necessity consent
self defense
a D may use force reasonably necessary to protect against injury when he reasonably believes he is being or is about to be attacked
D can not be the initial aggressor
LOOK FOR: duty to retreat
defense of others
a D may use force reasonably necessary to protect another against injury when he reasonably believes they are about to be or are being attacked.
D can not be the initial aggressor
LOOK FOR: duty to retreat
defense of property
requires D to request P to stop or leave unless it would be futile
D may not use deadly force
necessity
requires that injuring P’s property was reasonably necessary to avoid a substantially greater harm to the public, to the D or to save the D’s more valuable property
necessity
what kind of standard is applied
reasonable person standard
consent
can be express or implied
D will still be liable if he exceeds the scope of the consent
what are the economic harm and dignitary torts?
defamation
fraud/misrepresentation
invasion of property
nuisance
defamation
a defamatory message of or concerning the P that is communicated to a 3rd person and damages the P’s reputation
defamation
defamatory message
message lowers a P in the community’s esteem or discourages a 3rd person from associating with him
defamation
publication
a 3rd person received the defamatory message and understood it to be about the P
defamation
what are types of defamation?
libel
slander
slander per se
defamation
libel
the written form of defamation
defamation
slander
defamation not preserved in permanent form, including the spoken word
defamation
slander per se
commission of a crime
allegations of a loathsome disease
imputes improper conduct of business or profession
serious sexual misconduct
defamation
damages
general
punitive
pecuniary or special damages
defamation
general damages
no proof of actual damages required
defamation
pecuniary damages or special damages
quantifiable monetary losses
plaintiff must prove unless slander per se
defamation
punitive damages
need additional showing of malice
defamation
defenses
truth
privileges
consent
defamation: defenses
truth
historical defense
P must prove falsity of claim in prima facie case
defamation: defenses
privileges
absolute
qualified
defamation: defenses
absolute
defendant may not be held liable for an otherwise defamatory statement as a matter of law
defamation: defenses
qualified
defendant is not held liable for an otherwise defamatory message unless he loses the protection of the privilege
defamation: defenses
qualified
what does this apply to?
communications of a matter of interest to the recipient
defendant has burden of proving privilege
defamation: defenses
absolute
what does this apply to?
applies to legislator, participant in judicial proceeding, policy making officials and spouses
defendant has burden of proving privilege
defamation: defenses
qualified
when does privilege not apply or is lost if….
the matter is outside the scope of the privilege
- includes: matters not relevant to the interest protected by the privilege
OR
Defendant acts out of malice
- defendant’s primary motive was something other than furthering the interest that justified the privilege
defamation
what if the P is a public official or public figure?
malice is required
- knowing falsity or recklessness as to truth or falsity
misrepresentation/ Fraud
an intentional assertion of a material false fact that a plaintiff justifiably relied upon and that causes damages to P
misrepresentation
misstatement of fact
not an opinion unless rendered by someone with superior skill
false affirmative statement
active concealment
omissions of fact/failure to disclose
misrepresentation
scienter/malice
statement was made:
knowing it was false
OR
with reckless disregard as to its truth or falsity
what are the elements of misrepresentation
misstatement fo fact scienter/malice intent to induce reliance justifiable reliance (reasonable person standard) causation/damages
invasion of privacy
invasion of privacy consists of 4 separate torts- what are they?
appropriation of name or picture
intrusion on Ps affairs/seclusion
publication of facts placing P in a false light
public disclosure of private facts about P
invasion of privacy
appropriation of the P’s name or picture
unauthorized use of the P’s identity or likeness for the defendant’s commercial advantage
invasion of privacy
intrusion on the P’s affairs/seclusion
D unreasonably intrudes into the P’s seclusion
- physical or non-physical intrusion
- must be highly objectionable to a reasonable person
- refers to the P’s physical solitude and the privacy of personal affairs or concerns
P must have a reasonable expectation of privacy
invasion of privacy
Publication of facts placing plaintiff in a false light
defendant publishes matters that portray a plaintiff in a false light
attributing to the P’s views he does not hold or actions he did not take
reasonable person would find offensive
must be communicated to a substantial number of people
invasion of privacy
public disclosure of private facts about the P:
D unreasonably discloses private facts about a plaintiff to the public
needs to be highly offensive to a reasonable person and not of legitimate public concern
must be publication to the public
does not apply if publication is newsworthy
what invasion of privacy torts do consent and privilege defenses apply to?
all invasion of privacy torts
what invasion of privacy torts does truth defense apply to?
a defense to portrayal in a false light
public nuisance
unreasonable interference with a right common to the general public.
what does the court consider for a public nuisance?
if the conduct involves a significant interference with the public health, safety, peace, comfort, or convenience
if the conduct is proscribed by a statute, ordinance or regulation
AND
if the conduct is of a continuing nature or has produced a permanent or long-lasting effect
can a person recover personally from a public nuisance?
NO unless the person suffers a harm of a kind different from that suffered by other members of the public
private nuisance
an activity or thing that substantially and unreasonably interferes with the P’s use and enjoyment of the land
the interference must be substantial including: offensive
inconvenient
annoying
to an average person in the community
interference must be unreasonable
strict liability
D is liable for injuring a P whether or not the D exercied due dare
policy of law: impose liability regardless of how carefully the D has conducted himself
strict liability applies to:
abnormally dangerous activities
wild animals
products liability
what happens when strict liability is grounded in a statute?
LOOK FOR ACTUAL STATUTE
IF SEE STATUTE- THINK: strict liability
elements of strict liability case
P must prove
nature of the D’s activity imposed an absolute duty to make safe
the dangerous aspect of the activity is the actual and proximate cause of the P’s injury
and
P suffered damage to person or property
strict liability:
anbormally dangerous activity
create a foreseeable risk of serious hamr even with the exercise of reasonable care AND must be an activity that is not a matter of common usage
THINK: if reasonable care is used, it is not an abnormally dangerous activity
strict liability
wild animals
depends on the nature of the animal
injury by a wild animal will almost always result in strict liability even if D claims it is domesticated
D liable for damages when the animal trespass if it reasonably foreseeable
strict liability
domesticated animals
arises by statute
dependent on the owner’s knowledge
strict liability
products liability
defect design defect control changes business causation damages
strict liability: products liability
defect- manufacturoring defect
product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design
food products are treated the same way!
strict liability: products liability
design defect
P must show a reasonable alternative design that is a less dangerous modification or alteration and was economically feasible
strict liability: products liability
design defect- warning defect
while adequate warnings insulate a defendant
inadequate warnings result in liability
strict liability: products liability
design defect- foreseeable misuses
the seller must anticipate reasonably foreseeable misuses of the product
strict liability: products liability
design defect– reasonable alternative design
must exist at the time fo the original design
later improvements do not constitute a reasonable alternative design
strict liability: products liability
control
defect must have existed at the time the product left their control
strict liability: products liability
changes
product must reach the user without substantial change in the condition in which it was supplied
strict liability: products liability
business
only commercial suppliers can be held liable
causal sellers are not laible
strict liability: products liability
causation
both actual cuase and prozimate cuase required
strict liability: products liability
damages
compensatory and punitive damages available
most states deny recover under strict liability when the sole claim is for economic loss
strict liability: products liability
additional theories of recovery
intentional conduct
negligence
breach of warranties
strict liability
defenses
comparative fault
assumption of risk
negligence
duty
breach
causation
damages
negligence
duty
defendant must meet a certain standard of conduct for the protection of others against unreasonable risk
when action is taken a duty of care is owed to all foreseeable p’s
no affirmative duty to act exists
negligence
duty
when does an affirmative duty exist?
innkeepers
common carriers
special relationships
negligence
duty
what if someone assumes the duty to act?
liable if leaves the P in a worse condition
REMEMBER: assume no statute
IF STATUTE IS GIVEN: good samaritan statute will relieve liability under certain conditions
negligence
duty
is there a duty to control others?
No!
EXCEPTION: special relationships
special relationships:
parents and children
masters and servants
employer and employee
negligence
duty- special relationship
parent and child
parents have a duty to exercise reasonable care to control their child if they know or have reason to know of the necessity and have the ability to control their child
negligence
duty- special relationship
masters and servants (employee/er relationship)
duty to control servants while acting within the scope of their employment
duty of care in hiring employees
look for knowledge of prior bad
negligent infliction of emotional distress
P must be in the zone of danger
suffered a physical manifestation
EXCEPTIONS TO THE ZONE: negligent death notice and mishandling of corpse
negligent infliction of emotional distress
bystander
located near the scene of the accident
suffered severe emotional distress from the sensory and contemporaneous observation of scene
had a close relationship with the victim
possessors of land
what are the types of people that someone can have on their land?
invitee
licensee
trespasser
possessors of land
what duty does a landowner have to an INVITEE?
duty to prevent injuries and duty to discover dangerous conditions
possessors of land
what duty does a landowner have to a LICENSEE
duty to exercise reasonable care and to warn of dangerous conditions
possessors of land
what duty does a landowner have to an UNKNOWN TRESPASSER
no duty of care
possessors of land
what duty does a landowner have to a KNOWN TRESPASSER
depends on the jurisdiction*
possessors of land
what duty does a landowner have to CHILDREN
heightened standard of care as to artificial conditions
standard of care
D’s conduct is measured against a reasonable, ordinary prudent person.
standard of care
child
held to that of a child of the same age, education, intelligence, and experience
age 6 and below: conclusive presumed to be incapable of negligence
age of 7-13: rebuttable presumption of no negligence
age of 14 and ^: presumption of capability for negligence
breach
when D’s conduct falls short of the standard of care
negligence per se
statute calls for a criminal penalty, that statute’s specific duty replaces the common law duty
P must prove: that he was in the class intended to be protected by the statute
the harm suffered is the harm that the statute was designed to prevent
standards of conduct are clearly defined
res ipsa loquitur
circumstantial evidence doctrine
accident that caused the injury would not normally happen unless someone was negligent and the negligence is attributable to the D
causation
types?
ALWAYS ADDRESS BOTH
actual
legal/proximate
actual cause
cause in fact
but for the D’s actions, the P’s injury would not have occurred
OR
D’s actions were a significant fact in bringing about the injury
causation
what happens when there are multiple Ds?
if there are multiple D’s and there is uncertainty on who caused the injury the burden of proof shifts to P to prove that harm has been caused by one of them.
burden then shifts back to the D to show their negligence was not the actual cause
causation
legal/proximate
P must prove that D’s actions were the proximate or legal cause of her injury
test based on foreseeability
D are liable for the normal incidents within the increased risk caused by their acts.
ONLY to foreseeable plaintiffs who are within the zone of danger– risk must also be foreseeable!
causation
legal/proximate cause
eggshell plaintiff
D takes the full consequence for a P’s injuries
even if the injures are more severe than they would have been with a normal person
direct cause
if there is an uninterrupted chain of events between a D’s negligent act and the Ps injury
D is liable for all foreseeable harmful results
indirect cause
a force came into motion after the D’s act and combined with the negligent act to cause the P’s injury
intervening force may break the chain of causation between the initial act and the ultimate injury
foreseeable intervening acts
do not cut off a defendant’s liability
include:
subsequent medical malpractice
negligence of rescuers
subsequent accidents
KEY: forseeability
unforeseeable intervening acts
do not cut off liability
may include:
naturally occurring phenomena
criminal acts of 3rd persons (unless foreseeable)
intentional torts of 3rd persons
extraordinary forms of negligent conduct by the 3rd person
damages
actual harm or injury
what kind of damages can a P recover from negligence suit?
compensated for all past, present and prospective damages
includes: economic (medical, lost earnings) noneconomic (pain, suffering) *punitive - if D's actions were wanton and willful, reckless or malicious
NOT nominal
negligence
defenses
contributory fault
comparative fault
assumption of risk
ASSUME pure comparative fault applies in the jurisdiction of the case
negligence
comparative fault
that P’s conduct contributed to her injury and is compared to D’s negligence
damages are reduced accordingly
does not apply to intentional torts
assumption of risk
requires that P must have known of the risk and still voluntarily proceeded with the action.
P consented to D’s actions
can be express or implied
joint and several liability
when 2 or more tortious acts combine to cause an indivisible injury.
each D is liable for the entirety of plaintiff’s damages
joint and several liability
if P recovered in full from one D then….
she cannot recover from the second D
the rule fo contribution allows the tortfeasor that paid to seek recovery for the amount that was more than their share from the other D
