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
When is force to regain property allowed?
split
common law: reasonable force permitted
modern: must use legal process
When may a private citizen use privilege of arrest defense?
May use reasonable force to make a felony arrest if:
- The felony has actually been committed AND
- Arresting party has reasonable ground to suspect that the person being arrested has committed the felony
Mistake as to identity is OK
Mistake as to whether there was a valid felony IS NOT ok
For misdemeanor, can only make arrest if there is a breach of the peace
When may a police officer use privilege of arrest defense?
They must just reasonable believe that a felony has been committed and the person arrested comitted it
Mistake of felony or identity is ok
Arrest for misdemeanor is only allowed if it was committed in officer’s prescence
Trespass to Chattels
An intentional interference with P’s right to possess personal property either by:
- Dispossessing P of chattel
- Using or intermeddling with Ps chattel OR
- Damaging the chattel
need only intend to do interfering act and not an intent to interfere
Mistake about legality is not a defense
Damages for Trespass to Chattel
Can get actual damages, damges resulting from the loss of use, OR cost of repair
EXCEPTION: If intermeddling, P only gets actual damages
Conversion
Intentionally committing an act that deprives P of possession of chattel or interfering with chattel so much, it deprieves P use of the chattel
Just need to intend to commit the act
Mistake of law or fact is not a defense
Damages for conversion
Chattel’s full value at the time of conversion
Factors to decide between tresspass to chattels vs. conversion
General Rule: The more extreeme the interference the more likely the court will find conversion
- Duration and extent of interference
- D’s intent to assert a right inconsistent with rightful possessor
- D’s good fatih
- Expense and inconvenience to P
- Extent of the harm
Trespass to Land
D intentionally causes a physical invasion (themself or objects) of someone’s land
Need to only intend to enter the land
Mistake of fact is not a defense
Who can bring an action of trespass to land
Anyone on posession, not just the owner
Damages for trespass
Don’t need actual damages
Necessity as a defense to trespass
When someone enters land of another or interferes with their personal property to prevent an injury or other severe harm
Private vs. Public Necessity
- Private = protecting self
- Must pay for any actual (not nominal) damages caused
- Landowner cannot use force to exclude the person
- Public = private property can be intruded upon or destroyed when necessary to protect a large number of people from public calamities
- NOT liable for danges
What does it mean if a driver guest statute has been passed
Then a driver in that state is only liable to injuries that arise from gross or wanton conduct, and aren’t liable for negligence
For strict products liability, when is a supplier of the materials used to make the final product liable?
They are not liable unless the component itself is defective or the supplier substantially participates in the integration process and the integration of the component causes the product to be defective
What is private nuisance?
An activity that substantially and unreasonable interferes with anothers use and enjoyment of land
unreasonable interference = objective reasonable person test
Balance of the interference with the utility of the nuisance
Is the blocking of natural light or a view a nuisance?
No to both
EXCEPTION: Fence or wall put up with no purpose except to block neighbor’s view or sunlight
Are there defenses to a private nuisance?
There are two partial defenses:
- Compliance with regulations (evidence that activity is reasonable)
- Coming to the nuisance
What is a public nuisance and who can bring a case about it?
An unreasonable interference with a right common to the public as a whole
Case can be brought by:
- Public officials on behalf of the public to abate the nuisance
- Private individual if they have been harmed in a specific or unique way
What is the general duty owed by all people?
A duty of reasonable care is owed to all persons who may foreseeably be injured by the defendant’s conduct
There is no duty to act affirmatively
It is an objective standard that asks what a reasonably pruden person under the circumstances would do
Split view on scope of a foreseeable plaintiff
Majority/Cardozo: A duty is owed if the P is a member of the class of persons who might be foreseeably harmed by the conduct
Minority/Andrews: Anytime conduct can harm someone there is a duty to everyone, and whether this particular plaintiff was foreseeable is a proximate cause issue
Exceptions to no affirmative duty to act (4)
- Assumption of duty: if you voluntarily rescure/aid another, you have a duty of reasonable care in the performance of that aid or rescue
- Placing another in danger
- By authority: a person with the ability and authority to conrol another must exercise reasonable control (ex: parent and child or prisoner and warden)
- By relationship: A defendant has a special relationship with the plaintiff (Ex: common-carrier & passenger or innkeeper & guest)
Which of the following are taken into account when determining the standard of care owed:
- Mental and emotional characteristics
- Physical Characteristics
- Intoxication
- Minor status
- Mental and emotional characteristics - NO
- We presume average mental abilities and knowledge
- Physical Characteristics - YES
- D is compared to reasonably prudent person with like characteristics (ex: blind)
- Intoxication - NO
- Exception: intoxication was involuntary
- Minor status - YES
- D is compated to reasonable child of similar age, intelligence, and experience
- Exception: Children engaged in high-risk adult acitivities do not get modified standard (ex: driving)
- D is compated to reasonable child of similar age, intelligence, and experience
Standard of care for common carriers and inkeepers
split
Traditional: Utmost care - highest duty of care consistent with the practical operations of business
Modern: Liable only for ordinary negligence (normal standard)
Standard of care for automobile drivers
Traditional: Drivers only liable for grossly negligent, wanton, or willful misconduct (called guest statutes)
Modern: Ordinary standard of care is applied to drivers
Standard of care for bailees
Bailee = someone who takes temporary possession of another’s property (ex. = valet)
Complicated common law rules:
- Must worn a gratuitious bailee of known dangerous conditions
- If bailor receives sole benefit, bailee has lesser duty
- If the bailee receives a benefit, higher duty, and even slight negligence can result in liability
Standard of care for emegency situations
Standard is that of a reasonable person under the same circumstances
Majority approach to duties owed to people on land
tripartate strcuture with different duty owed to each group
-
Trespassers duty: refrain from willful, wanton, intentional, or reckless misconduct (ex: spring gun)
- Must warn or protect discovered trespassers of hidden dangers
- No duty owed to undiscovered trespassers
-
Licensee duty: either make the property reasonable safe or warn of concealed dangers
- Don’t need to inspect
-
Invitee Duty: Must use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them
- Can be public (when land is held open to public) or a business visitor
- NON-DELEGABLE - cannot avoid duty by assigning to someone else
Attractive Nusiance Doctrine Requirements
Liable for injuries to children trespassing on land if:
- An artificial condition exists in a place where the owner knows or has a reason to know children are likely to trespass
- The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm
- The children, because of their age, do not discover or cannot appreciate the danger
- The utility of maintaining the condition is slight compared to the risk of injury AND
- The land possessor fails to exercise reasonable care
The California/Modern approach to duty owed to persons on land
Split
Some say reasonable care is just owed to all entrants (and trespasser status is considered a factor in determining reasonable care)
Third restatement says reasonable care under the circumstances is owed to all except flagrant trespassers (who you just must refrain from intentional, willful, or wanton actions that cause harm)
Duties of landlord vs. tenant
Landlord
- Maintain safe common areas
- Warn of hidden dangers AND
- Repair hazardous conditions
Tenant = liable for injuries arising from conditions within their control
Duty owed to off-premises victim
General rule is not liable for injuries resulting from natural conditions (ex: tree falling on neighbor property)
EXCEPTION: trees in urban areas
For artificial conditions, must prevent unreasonabel risk of harm to persons not on the premises
Two approaches to breach
Traditional: What would a reasonably prudent person have done
Cost-Benefit Analysis: Hand Formula - Burden v. Probability of harm x severity of loss
The rules for custom when it comes to breach
- General rule = Custom is admissible evidence but not dispositive
- For professionals (lawyers, accountants, electricians, etc.) custom is admissible and dispositive
- It can be a shield or a sword
- Custom for physicians is the national standard (used to be same or similar locality)
Informed consent rule for doctors
- Patients must give informed consent to procedures
- Informed = doctors must explain risks of medical procedure
- Doctor does not need to inform patient if:
- The risks are commonly known
- Patient is unconcious
- Patient waives or refuses info
- Patient is incompetent OR
- Patient would be harmed by disclosure
Negligence per se elements (5)
Negligence per se = when a law establishes a particular standard of care, violation of the law is a breach
- A criminal law or regulatory statute imposes a particular duty for the protection of others
- D violated the statue
- P is in the class of people intended to be protected by the statute
- The accident is the type of harm that the statute was intended to protect against AND
- The harm was caused by a violation of the statue
Note: compliance with statute does not = reasonable care
Defense to negligence per se
Excuse for non-compliance
examples:
- Compliance with statute would have been more dangerous
- Compliance was impossible
- Emergency justified violation
- Incapacity
- Exercised reasonable care in trying to comply
- Vagueness
Res ipsa loquitur Elements (3) & application to medical malpractice and products liability
- The accident was of a kind that does not ordinarily occur in the absence of negligence
- It was caused by an agent or instrumentality within the exclusive control of D
- It was not due to any action on the part of the Plaintiff
Medical malpractice = Some jurisdictions shift burden to ALL defendants if res ipsa loquitor is proven
Products liability = most courts ignore exclusive control requirement if it is clear defect happened before packaging
