Torts Flashcards
1
Q
Battery
A
Defendant must cause a harmful or offensive contact with the P’s person.
elements: intent harmful or offensive conduct against the plaintiffs person causation
harmful: traditional definition of harmful
Offensive: think unpermitted, or not consented to by a person of ordinary sensitivity. consent is implied for the ordinary contacts of everyday life.
Person is anything connected to the P at the time. Slapping a horse’s ass is a batter bc it’s connected to the person.
2
Q
Act by Defendant
A
act must be volitional movement
3
Q
specific intent
A
the purpose in acting is to bring about specific consequences
4
Q
general intent
A
actor know with substantial certainty that these consequences will result.
5
Q
damages for battery and assault
A
doesn’t have to include damages bc plaintiff can recover nominal damages even without actual damages.
if it’s malicious then they can recover punitive damages.
6
Q
Contact that occurs later
A
Contact that occurs later can still be a battery. Even after a delay.
7
Q
Assault
A
Intent,
causation,
Reasonable apprehension,
in fear of an immediate battery .
8
Q
Reasonable apprehension
A
Plaintiff must have KNOWLEDGE of the imminent harmful or offensive contact and must be a reasonable one.
if you are oblivious then you can’t be assaulted. sleeping people can’t be assaulted.
Don’t confuse it with fear or intimidation. A weakling can cause a bully to apprehend offensive contact for purposes of assault. bully isn’t scared but prepared to be hit with a stick.
words alone are never enough to lead to an assault. they lack immediacy there has to be some conduct.
9
Q
Unloaded gun problem
A
it’s a bluff, threatening to conduct a battery on the P.
If P knows it’s a bluff then there’s no battery and therefore there is no assault.
If P doesn’t know that it’s a bluff and reasonably expects the threat then the D will be liable for assault.
10
Q
Transfered intent
A
D intends to commit a tort against one person but instead
- commits a different tort against the person,
- commits the same tort as intended but against a different person
- commits a different tort against a different person.
intent to commit a certain tort against one person can be transferred to another person who was assaulted.
11
Q
False imprisonment
A
Elements
1.There must be an act of restraint by the defendant, (Restraint is the element, can be both a battery and holding down a person, can be as simple as a threat, can be an omission as well),
- that confines a plaintiff to a bounded area
- intent
- causation
12
Q
Intentional infliction of emotional distress
A
- extreme and outrageous conduct
- intent or recklessness,
- causation, and
- Severe emotional distress- damages
13
Q
extreme and outrageous conduct
A
If it exceeds all bounds of decency tolerated in a civilized society
can never be near insults.
if it’s conduct not normally deemed outrageous then it can be extreme and outrageous if it’s
- continuous in nature,
- it is directed toward a certain type of plaintiff (children, elderly, pregnant women), OR
- it is committed by a certain type of defendant (common carriers [delta, amtrack] , innkeepers all are required to be courteous, they are special insults are enough).
If you know of D’s idiosyncrasy and target it here then it’s outrageous. (can’t take advantage of their Achilles heel.)
14
Q
damages- Intentional infliction of emotional distress
A
actual damages are required (severe emotional distress), NOT nominal damages. proof of physical manifestation not required. The more outrageous the less proof of damages required.
15
Q
severe emotional stress
A
no particular KIND of evidence can be whatever you want.
16
Q
Trespass to land
A
- an act of physical invasion (two ways: first intentional entry on the land knowing. you are on someone elses property, second even if you are unaware that you crossed the line and are on someone else’s land, CAN BE YOU THREW SOMETHING TANGIBLE ON THE LAND).
- of land (includes, air, and soil out to. areasonable distance a kite that flys over is a trespass)
- intent (The only intent is that you deliberately got to that land you are on, horse got scared and you cant stop it from going on the land that’s not intent)
- causation
17
Q
Plaintiffs- trespass to land
A
anyone in actual or constructive possession of the land may maintain the action.
18
Q
Trespass to land- damages
A
plaintiff can recover without showing actual injury to the land.
19
Q
Trespass to chattels and conversion
A
- An act by D that interferes with P’s right of possession in chattel;
- Intent
- causation,
- damages
types of interference:
- intermeddling (directly damaging) Vandalism
- dispossession: (depriving P of his lawful right of possession of the chattel) Theft
Intent: mistaken belief of ownership is not a defense to trespass to chattel.
conversion you have to have to have the intent to do the act that interferes with the P’s right of possession.
20
Q
Conversion damages
A
You get the “fair market value at the time of conversion” or replevin (possession). Operates as a forced sale, you break it you buy it
21
Q
Trespass to chattels v.s conversion
A
if the harm is small then you argue trespass to chattels, if harm is BIG conversion.
Crops aren’t personal property until they are cut from the land until then they are part of the land.
22
Q
Trespass to chattel damages
A
are actual damages and not necessarily to the chattel, but at least to a possessory right- are required.
23
Q
Consent as a defense
A
P’s consent to defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act.
There are two inquiries:
1. was there valid consent (no fraud)?
2. Did the D stay within the boundaries of the consent? (no gun at boxing match
24
Q
Consent capacity
A
individuals without cappacity are deemed incapable of consent.
Requirement for capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense. Evey person even kids have the capacity to commit a tort, but to consent to the tort
25
express/actual consent
D is not liable to P who expressly consents to D's conduct except:
1. mistake will undo express consent if D knew of and took advantage of the mistake
2 consent induced by fraud is invalid if it goes to an essential matter, but not a COLLATERAL matter
3. consent obtained by duress is invalid unless the duress is only threats of future action or future economic deprevation
26
Implied consent/ apparent consent
a reasonable person would infer from CUSTOM AND USAGE or plaintiff's conduct----- like football contact.
Consent implied by law when person acts necessary to save a persons life or some other important interest in person or property
27
SELF DEFENSE, DEFENSE OF OTHERS, AND DEFENSE OF PROPERTY
1. Is the privilege available? these privileges only apply for preventing the commission of a tort. Already committed torts don't qualify
2. is a mistake permissible as to where the tort being defended against is actually being committed?
3. Was a proper amount of force used?
28
Self-defense
when a person reasonably believes that she is being or is about to be attacked she may use such force as is reasonably necessary to protect against the injury.
The majority rule is that there is no duty to retreat, but there is a duty to retreat ONLY if using deadly force (no retreat in your home)
intial aggressor- cannot argue self defense unless the other party responds to nondeadly force with deadly force.
lose the defense if the force used is unreasonable.
29
Defense of others
available when:
force is used to defend another with the actor reasonably believes that the other person have used force to defend himself.
Mistake? reasonable mistake as to whether a person is being attacked or has a right to defend himself is permitted.
Use the amount of force you would be permitted to use for self defense.
30
Defense of property
You may use reasonable force to prevent the commission of a tort against her real or personal property.
Must request that they stop or leave if it's futile or dangerous to do so.
CANNOT SET TRAPS
Hot pursuit is appropriate when the tortfeasor has taken property that is chattel bc the tor is ongoing.
Is superseded by privilege to enter bc of necessity , recapture of chattel.
If D reasonably believes a tort is being conducted without a privilege they may then argue mistake. Mistake is also available to argue that you reasonably did not request they stop.
force: reasonable forse not deadly or of serious bodily injury unless the threat to the land will result in death or serious bodily injury.
31
Reentry onto land
at comon law reasonable force was permitted to reenter land when the other came into possession tortiously.
Modern law is that summary procedures should solv this such as ejectment. Self help is really no longer availible.
32
Recapture of chattel
when another's possession began lawfully (conditional sale) one may use only peaceful means to recover chattel. If in hot pursuit then force can be used.
There must first be a timely demand to return the chatter, unless futile or dangerous
Cannot recapture from an innocent party who does not know that the chattel is a result of a taking.
33
Necessity
ONLY FOR PROPERTY TORTS
a person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or toerh force and when the treatened injury is substantially more serious than the invasion that is undertaken to avert it.
1. public necessity- the act is for the public good
2. private necessity when the act is solely to benefit of specific people. If private then they must pay for any injury he caused.
NOT liable for nominal or punitive damages.
34
Negligence
1. Duty;
2. A breach of that duty by defendant;
3. The breach is the actual and proximate cause of plaintiff's injury; and
4. Damages
35
Punitive damages v. nominal damages
Punitive damages exceeding simple compensation and awarded to punish the defendant.
Nominal are awarded to a plaintiff in a case where the court decides that the plaintiff suffered a legal wrong but no real financial loss. By issuing such a ruling, the court recognizes that the defendant has breached the plaintiff's rights.
36
Negligence duty of care
A duty on the part of the defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
Think about issues of law.
ask:
1. Was the P foreseeable? Unforseeable always loses.
Majority duty of care only to a foreseeable p who is "within the zone of danger" from D's conduct.
Minority duty of care is owed to anyone who suffered injries proximately caused by the D's neglegence. 3rd party beneficiaries are due a duty.
2. If so what is the applicable standard of care?
37
Breach
about the facts, find the breach on the exam hypo
38
causation
logical thinking applying the law to the facts leading to breach
39
Duty Rescuers (they are an exception to the zone of danger)
rescuers: foreseeable P where D negligently put himself or a third person in peril. Firefighter rule: you aren't due damages for harm done in the line of duty.
40
duty parental injuries
a duty is owed to a viable fetus. Fetus if dead cannot sue but parents can ofr wrongful birth or wrongful pregnancy. For pain and suffering NOT for ordinary child rearing experiences.
41
Basic Standard of care
REasonably prudent person standard is objective, measured against what an average person would do.
Defendant's mental deficiencies and inexperience are not taken into account.
"reasonable person is considered to have the same physical characteristics as defendant if those physical characteristics are relevant to the claim.
If D has knowledge or experience superior to that of the average person they are held to that standard.
42
particular standards of conduct
Professionals: with special occupational skills must act with the same standard of care as that of an average professional with the same skills and training.
The professional must be a conformist. Dr. has a national standard must disclose the risk of treatment in order to obtain consent.
Children: held to the standard of a kid their own age and such it's subjective. under age of 5 are not liable. Unless involved in an adult activity then use reasonably prudent person. aka alcohol or car, tractors.
Common Carriers adn Innkeepers high standard but only for PASSENGERS or GUESTS.
Car drivers, ordinary duty of care.
Bailment: when the bailor transfers possession to bailee but not title.
duty depends on who is to benefit from the relationship for the bailor its low standard if for bailee then for a higher one, if mutual it's standard care.
43
Owner or occupier of land
extent of the liability of owners and or occupiers depends on where the injury occurred and on the status of the P.
In Urban areas the P is LIABLE for damages caused off the premises by the trees on their premises.
44
Traditional land owner liability
duty owed a plaintiff on the premises for dangerous conditions on the land depends on if their a trespasser, licensee, or invitee.
licensee: includes social guests, duty to warn or make known conditions that are not obiously dangerous. Reasonable care.
Trespassers Duty to warn only of Highly dangerous nonobvious, natural condition no dutie. otherwise duty of reasonable care. same standard for artificial and natural conditions.
Invitee: includes member of public, business visitor- duty to make reasonable inspections to discover nonbviousl dangerous conditions and warn of or make them safe for artificial and natural conditions. Reasonable care.
45
Statutory standards of care (negligence per sue)
“Negligence per se”
When D violates a criminal statute and is sued for negligence,
The criminal statute replaces the common duty of care if:
1. Plaintiff is within the protected class, and
2. The statute was designated to prevent the type of harm suffered by plaintiff.
If successful it will establish both Duty and Care.
46
Compliance with a statute and negligence per se
Abiding by the statute is not conclusive of duty of care.
47
Duty to rescue
You have no duty to rescue ever unless theres a preexisting relationship (restaurant, and guest; family members; formal traditional relationships; hotel and guest). You have a duty to rescue if you cause the peril.
You are liable for your screw up if you started rescuing. Unless there is a Good Samaritan law.
Never have to rescue if you willl put your own life at risk even if it’s your own child drowning in the lake bc you dropped her.
48
Good Samaritan law
Only in state’s that have them. Assume there is no Good Samaritan law.
49
Negligent Infliction of Emotional Distress
Near Miss cases: When D creates a physical risk of physical injury to the P. The P usually must show
1. The p must be within the zone of danger and
2. The p must suffer physical symptoms from the stress.
50
Bystander cases of negligent infliction of emotional distress
1. P and victim must be close family members (nuclear family, no grandkids),
2. Plaintiff was present at the scene of the injury
3. The P personally observed or perceived the event.
51
Negligent infliction of emotional distress when not a family member
Highly foreseeable that the acts will cause emotional distress.
(Doctor giving a false positive cancer result.
Funeral home tells you I’m sorry we lost your grandma’s ashes)
52
Breach of Duty
This is the factual l part of the analysis:
You need to identify the conduct and give the reason why it is wrongful.
53
Res Pisa loquitur
1. Accident. Amusing the injury is a type that would not normally occur unless someone was negligent and
2. The negligence is attributable to defendant (this type of accident that ordinary happens because of negligence of someone in defendant’s poison.
54
Negligence Causation
P must show that the conduct was the cause of his injury.
55
Actual Cause
But For test
Act or omission is the cause in fact of an injury when the injury would not have occurs but for the act.
D will respond to But for with Even If.
MULTIPLE DEFENDANTS:
Merged causes
Several causes bring about injury one alone would have been sufficient to cause the injury alone.
Unascertainable
Only one of the acts caused the injury but it’s unknown which one.
SUPER IMPORTANT to know the difference between the merged and ascertainable cause
56
Proximate Cause
Legal Causation
D’S conduct is required to also be a proximate cause of the injury. Think Froseeablility.
risk D is liable for all harmful results that are normal incidents and within the increased risk caused by his act.
Think about it as foreseeability, it’s common sense and a jury will pick that.
57
Proximate Cause four scenarios
The D will be the proximate cause and required to pay.
1. Intervening medical malpractice: Dude gets in car wreck from Driver incompetent doctor puts a cast on too tight and leg has to be amputated. Driver is liable.
2. Intervening negligent rescue: driver causes a man to get stuck in road another man tries to help man stuck in street and dislocates his shoulder. The driver will be liable
3. Car is coming at you, and crowd stampedes someone gets hurt and the Driver is liable.
4. Subsequent disease or accident. Man gets run over and is in a cast the next day falls over his crutches, the driver is liable for the crutches harm.
58
Negligence- Damage
Eggshell skull doctrine:
P establishes all elements, they P acquires all damage suffered even if surprisingly great in scope.
Eggshell skull applies to all torts. They are responsible for the FULL amount.
Punitive- not usually offered in negligence, UNLESS D acted willfully and wantonly reckless or malicious.
Cannot ever recover: interest or attorney’s fees.
Theres’ a duty to mitigate damages.
Damages not reduced from insurance: If P receives aid from elsewhere you still have to pay the amount, even if their insurance covered it.
59
Defense to negligence- contributory negligence
D offers evidence that P failed to offer care for his own safety. REasonable Prudence, and observance of statutes.
They each get a person at age number that represents their % of fault and the P’s damages will be reduced by that amount. A lot of jury discretion dot decide this.
NEVER ALLOWED IN INTENTIONAL TORTS.
60
Last clear chancE
Permits the P to recover the full amount of the damages if the D was the last clear change avoider of the accident.
61
Strict liability- animals
Liability for animals
Domestic: house pets, and farm animals (includes honey bees and bulls)—> no strict liability for these, unless you have knowledge that they have vicious propensities, then you are liable. Bite 1 no liability Bite 2+ then strict liability but no matter what NEVER liable to a trespasser.
Dangerous animals- automatically strict liability, includes zebras
62
Strict liability elements
1. Nature of the D’S activity imposes an absolute duty to make safe;
2. The dangerous aspect of the activity was the actual and proximate cause of the P’s injury and
3. The P suffered damage to person or property
63
Strict liability
Abnormally dangerous activities:
1. Activity that cannot be made safe even when reasonable care is exercised
2. The activity has to be an anomaly in that area.
ALWAYS when dealing with explosives.
64
Theories of liability
Five theories:
1. intent
2. negligence
3. strict liability
4. implied warranties of merchantability and fitness for a particular purpose
5. Representation theories (express warranty and misrepresentation.
65
Elements of Strict liability
1. The D is a merchant,
2. Defected product,
3. Product not altered since leaving the manufacturers hands. (ordinary channels of distribution, assume it has not been altered)
4. Plaintiff made a foreseeable use of the product at time of the injury (misuse is forseeable, it's not about if your using it appropriatly, but forseeably instead, you can stand on the chair that only had 3 bolds)
PRIVITY is never required
66
Strict liability merchant issues
Casual sellers, are the garage sale person, person selling their car on craigslist. NOT strictly liable
Service providers, collateral to the service- Dr office and chair breaks or you react badly to the bandaid, then NO strict liability.
Commercial Lessors- ARE LIABLE under strict liability--- like rental car company
EVERYONE in the distribution of the product is liable. Can sue multiple people
67
Defects
A manufacturing defect is when it departs from the intended design ( supposed to have 8 bolts, but this one only had 7 bolts, that's a manufacturing defect).
Design defect: if the product doesn't come with adequate warnings, then the P must show that the D had a feasible alternative (could have made the product safer without serious impact on the product's price or utility.) [making a tedy bear with tiny buttons that the kid swallows and dies, then you win on strict liability and maufaturer loses.]
Government Safety Standards: noncompliance with govt warnings or safety standards establishes defect, but is NOT conclusive.
Adequate warning defect: Lack of adequate warnings makes it a defect. May need to be 1. conspicuouse, 2. comprehensible (languages, pics for kids, normal words) 3. information about mitigating the risk.
68
Affirmative defenses - Strict liability
?
69
Nuisance
substantial and unreasonable interference with the peaceful use and enjoyment of property.
Intent or negligent- includes awareness of the interference, not that you intend for it to interfere.
70
Private nuisace
Private individual's use or enjoyment of property that he possess.
71
Public nuisance
interfers with the HEALTH, SAFETY, OR PROPERTY RIGHTS OF THE COMMUNITY.
72
Vicarious liability
Liable for the acts of a third person,
where there is a relationship.
( always remember if they are not vicariously liable they can be negligent in highering.)
Relationships: Respondeat Superior: employer can be held liable if the employee was acting within the scope of employment relationship. If they depart from their employment duties, by FROLIC and DETOUR if minor then employer is liable, if huge detour then he is personally liable not the employer.
Intentional torts: are outside the scope of employment. UNLESS force is authorized like security guard or bouncer. Friction is generated by employment (bill collector), Employee is furthering the business of the employer, removing rowdy customer.
Independent contractor:
if they come on the property and they hurt someone then the employer is liable. Otherwise employer never vicariously liable.
73
Joint and Several Liability
if more than 1 tortfeasor then 1 can be jointly and severally liable for all the torts, but then they can seek contribution from the defendants he chooses and they are responsible for the % of the liability they are responsible for. No contribution for intentional torts.
74
loss of consotion
for relationship between husband and wife, and parent and child. If you cant have sex then you can sue whoever harmed your spouse from having sex.
