Torts Flashcards
Assault
- intentional act
- causing apprehension of
- imminent threat of harmful/offensive contact
Battery
- intentional act
- harmful or offensive conact
- contact with plaintiff’s person
False Imprisonment
- intentional
- confinement / restraint
- plaintiff aware of confinement or harmed
- no reasonable means of escape
IIED
- intentional
- extreme and outrageous conduct
- plaintiff suffers severe emotional distress
Trespass to Land
- intentional act
- physical invasion
- invasion of the land of another
Trespass to Chattels
- intentional act
- interference with right of use/possession
- property (chattel) of another
Conversion
- intentional act
- SUBSTANTIAL interference with use/possession
- property of another
Remedy - D pays full market value at time of conversion
Self-Defense
The defendant must reasonably believe that a tort is being or about to be committed against himself
Force must be reasonable
Defense of Others
The defendant must reasonably believe that a tort is being or about to be committed against a third person
Force must be reasonable
Defense of Property
The defendant must reasonably believe that a tort is being or about to be committed against his property
Deadly force never allowed
Recapture Chattels
- Fresh pursuit
- wrongful taking
- Reasonable force
Shopkeeper’s privilege
- temporarily restrain
2. reasonable belief stolen goods
Arrest
- D restrains P by
2. Exercising legal rights
Necessity
- reasonably necessary
- to prevent great harm
Public – no damages
Private – pay for damages but not liable for trespass
Consent
The plaintiff must have capacity to consent and the defendant must not exceed the bounds of the consent
implied or express
Misappropriation
- P’s name or picture used
- use is unauthorized
- D used for commercial advantage
Exception –> Nesworthy
Defenses
- consent
Intrusion on P’s Solitude
- intrusion of private affairs
- reasonable expectation of privacy exists
- highly offensive to reasonable person
Defenses
- consent
False Light Publication
- public placement
- material falsehood
- highly offensive to average person
Recover – emotional damages and economic damages under defamation
Defenses:
- consent
- qualified privileges
Publicity of private life
- public disclosure
- disclosure of private information about plaintiff
- disclosure highly offenseive to reasonable person
Exception –> Newsowrthy
Defenses:
- consent
- qualified privileges
Intentional Misrepresentation
- intent to induce reliance
- actual reliance
- damages
- misrepresentation knowing its false or recklessly disregarding truth
Negligent Misrepresentation
- misrepresentation in business/professional capacity
- breach of duty to plaintiff
- causation - reliance on misrepresentation
- reliance justified
- damages
Interference with business relation
- contract or business relationship between P and Third Party
- D knowledge of the relationship
- Intentional interference by D to induce breach
- Damages
Defamation
- defamatory statement concerning P
- publication to third party
- Damages
- - Libel: presumed
- - Slander per se: presumed
- - Economic damages
If public concern, must also show:
- evidence of falsity
- degree of fault by defendant
- – P is public figure - FAULT = statement made with malice (know it was false or reckless disregard of truth)
- - P private figure on public issue - NEGLIGENCE
- - P private figure on private issue - PUBLICATION
Slander Per Se
- statement relating to P business/profession
- statement that P committed serious crimes
- statement imputing unchastity of a woman
- statement that P suffers from a loathsome disease
Defenses to Defamation
- consent
- Truth
- Privilege
Defamation - Absolute Privilege
- Communication between Spouses
2. Statements by officers in 3 branches of gov’t in context of work
Defamation - Qualified Privilege
Public Interest: must be
- reasonable and good faith
- limited to relevant matter at hand
VICARIOUS LIABILITY
Employer-employee (respondeat superior)—the employer is liable for torts of an employee that occur within the scope of the employment relationship
Principal-independent contractor—the general rule is that a principal is not vicariously liable for the torts of an independent contractor, but broad exceptions exist:
- The independent contractor is engaged in inherently dangerous activities
- The principal’s duty cannot be delegated because of public policy considerations
Automobile owner-driver—an automobile owner is not vicariously liable for the negligence of the driver unless the state has adopteD STATUTE
Parent-child—a parent is not vicariously liable for a child’s torts at common law (but statutes in many states impose limited liability for the child’s intentional torts)
Private Nuisance
- substantial, unreasonable interference with use/enjoyment of property
- Defendnt action intentional, negligent, or strict liability
- injury must outweigh utility of D’s conduct
Public Nuisance
- act that unreasonably interferes with
- health, safety or property rights of community
Private party can recover with different damages only
Strict Liability - Animals
Imposes liability on a defendant for the plaintiff’s injury even though the defendant was not negligent
Domesticated – liability of you have knowledge that animal has dangerous propensity not common among species
Wild – liable just through possession
Analyze causation and damages
Strict Liability - Abnormally Dangerous Activities
(1) activity must be a type of activity that cannot be made reasonably safe even through the exercise of ordinary care
(2) Activity must be uncommon in the area where the defendant is engaging in the activity
Analyze causation and damages
Product Liability - Strict
- D = merchant
- Product is defective
- Product not altered since leaving D hands
- P use was foreseeable
- Actual and proximate cause
- damages
Product liability - Negligence
Breach of duty is shown by negligent conduct by the defendant that leads to supplying a defective product to the plaintiff
Manufacturer will be liable for damages caused by a defective product if the manufacturer knew or should have known of the dangerous defect.
Product Liability - Warranties
Express
Implied
- merchantability
- fitness for a particular purpose
Comparative Negligence
Pure – P recovers but damages reduced by P’s % of fault
Partial = P can recover reduced damages if P’s fault is under 50%, otherwised barred
Contributory Negligence
Bars P from recovery if P contributed to his own injury
Assumption of Risk
Reduction in damages where P is aware of risk and voluntarily assumes it (express or implied)
Undiscovered Trespasser
No duty
Discovered/Anticipated Trespasser
Duty to warn or make safe IF:
- KNOWN by D
- highly DANGEROUS
- ARTIFICIAL conditions
- not obvious to trespasser
Licensees
Duty to warn or make safe IF:
- Artificial and Naturally dangerous conditions
- KNOWN by D
- Concealed from Licensee
Invitees
Duty to warn or make safe IF:
- Condition is concealed
- D knows of condition or could have found out through reasonable inspection
Duty to reasonably inspect
Negligence Per Se
(i) The plaintiff is within the class that the statute was intended to protect
(ii) accident that occurred was within the class of risks that the statute was designed to prevent
EXCEPTION of compliance with statute is:
- more dangerous under circumstances
- impossible under circumstances
NIED
Duty created if:
- P in zone of danger
- bystander - if P & Victim were close family and P was a contemporaneous Witness
- business relationship where highly foreseeable that careless performance by D will result in emotional distress
Res Ipsa
the fact that an injury occurred may create an inference that the defendant breached his duty
- accident wouldnt happen without negligence
- D had exclusive control
- injury not attributable to P
Child Standard of Care
must conform to standard of care of a child of like age, education, intelligence, and experience acting under similar circumstances
- kids under 5 = cannot be liable
- kids engaged in adult activity = apply adult standard
Professional Standard of Care
must exercise the knowledge and skill of a member of the profession in good standing
Actual Cause Tests
- But For
- Substantial factor test
- alternative causes
