Torts Flashcards
Market share liability doctrine
if the plaintiff’s injuries are caused by a fungible (identical) product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.
Three elements to prove an intentional tort
- Act
- Intent AND
- Causation
Intent requirements for an intentional tort
Acting with the purpose of causing the occurence
OR
They know consequence is substantially certain to follow
Intent can be transferred, whether it is a different tort, diferrent person, or both
Note: Children and mentally incapacitated people can have intent
Battery
- What is it
- Causation
- Intent
- Damages
- Two requirements
- D causes a harmful or offensive contact with the person of another AND
- Acted with intent to cause the contact or apprehension of the contact
- Transferred intent applies
- Damages
- Nominal allowed
- Eggshell plaintif rule applies
- Punitive damages if D acted:
- Outrageously OR
- With Malice
Harmful or Offensive Contact for Battery Qualifications AND what does person of another include?
- Harmful = causes an injury, pain, or illness
- Offensive = a person of ordinary sensibilities would find the contact offensive (eg groping)
- BUT if D knows victim is hypersensitive, D may be liable
- Person of another includes anything connected to P
- Eg Chair or hat on head
Eggshell Plaintiff Rule
A defendant is liable for all harm tha flows from a battery, even if it is much worse than they expected it to be
What is the defense to battery?
Consent (express of implied)
Assault Requirements
- Act that causes a reasonable apprehension of an imminent harmful OR offensive bodily contact AND
- D intends to cause apprehension of such contact or such contact itself
Notes
- No contact required
- Plaintiff’s apprehension must be reasonable
- P must be aware of D’s action
- Imminent = must be without significant delay (threat of future harm is not enough)
- Mere words generally is not assult, but can be enough
Assault Damages
Similar to battery
Nominal damages ok
Can get damages for physical harm flowing from the assault
Punitive damages may be available
Intentional Infliction of Emotional Distress
Defendant intentionally or recklessly engages in extreme AND outrageous conduct that causes P severe emotional distress
EXCEPTION (constitutional): Public figures (or matters of public concern) cannot recover unless they can show a false statement of fact made with actual malice
Malice = knowledge that the statement was false or with reckless disregard of falsity
What is extreme and outrageous conduct?
Conduct that exceeds the possible limits of human decency as to be entirely intolerable in a civilized society
Need more than threats
When it is likely:
- D is in a position of authority or influence over P
- P is a member of a group that has heightened sensitivities (think children or elderly)
When can a third party recover for IIED?
- Immediate Family Member - Intent transfers if:
- Present at time of conduct
- Perceives the conduct
- Do not need to suffer a bodily injury
- Bystander - Higher bar for intent to transfer:
- Present at time of conduct
- Perceives the conduct AND
- suffers a bodily injury (physical manifestation of distress)
Damages for IIED
- Don’t need to have a physical injury
- If hypersensitive, can only recover for that level if D was aware
False Imprisonment
Three Requirements:
- Defendant intends to confine or restrain another within fixed boundaries
- Area of confinement can be large or moving
- The actions directly or indirectly result in confinement
- P is concious of the confinement or harmed by it
EXCEPTION: Shopkeeper’s privilege - they can detain a suspected shoplifter for a reasonable time and in a reasonable manner
Intent needed for false imprisonment
Must act either:
- purpose of confining P OR
- knowing confinement is subtantially certain to result
* Negligence is not enough*
What kind of damages can you get for false imprisonment?
Nominal and actual
Six Defenses to Intentional Torts Involving Personal Injury
- Consent
- Self-Defense
- Defense of Others (can use if other could use self-defense)
- Defense of Property
- Parental Discipline (reasonable force allowed)
- Privilege of Arrest
Express Consent to Intentional Physical Injury Torts
The P, by words or actions, manifests the willingness to to submit to the defendant’s conduct (limited by scope)
Cosent by mistake
Valid defense unless D cause mistake or took advantage of it
Consent by fraud
Invalid if it goes to an essential matter (otherwise still valid defense)
Implied Consent for Intentional Torts
P is silent where their silence and continued participation can reasonably construed as consent
Situations where is arises
- Emergency
- Injuries arising from athletic contests
- EXCEPTION: Conduct is reckless
- Mutual consent to combat
Exception to consent defense
Capacity may undermine validity of consent (ex: Youth, intoxication, and incompetency)
When is self-defense allowed?
You are allowed to use a proportionate force to defend against an offensive contact or bodily harm
Most jurisdictions do not require duty to retreat before using deadly force
EXCEPTION: If you are initial agressor can only claim if other party responsed to nondeadly force with deadly force
What happens if a bystander is injured while you use self-defense?
Not liable as long as the injury was accidental and you were not negligent toward the bystander
When is defense of property allowed?
You can use reasonable force to prevent tortious harm to the property
AND you can use it to reclaim personal property that was wrongfully taken, IF you request it to be returned first UNLESS the request would be futile –> BUT if original taking was lawful, you can only use peaceful means
NO deadly force allowed, including mechanical devices
