Torts Flashcards
What are the elements of an intentional tort?
1) Intent: a) P (purposeful), or b) K (knowledge): D knows consequence is substantially certain 2) Act: voluntary
What are the elements of battery?
1) Intent. Transferred intent doctrine applies. a) Single-intent rule (majority): Intent wrt contact, not its nature. b) Double-intent rule: Intent wrt contact and its nature. 2) Harmful or offensive contact. Objective standard. No actual harm required. 3) To person of another. Or anything connected. 4) Causation. Direct or indirect.
Definition of assault:
Act or threat intended to cause apprehension of imminent harm or offensive contact.
What are the elements of assault?
1) Conduct or other circumstances. Mere words not enough. 2) P must have reasonable apprehension and awareness of D’s act or threat. 3) Imminent threat of harm. 4) Intent. Includes transferred intent.
What are the elements of IIED?
1) Intent or recklessness: D must intend to cause severe emotional distress or must act with recklessness as to the risk of causing such distress. 2) Extreme and outrageous conduct by D. Beyond human decency, outrageous. 3) Causation. Factual-cause test: no imminence requirement for IIED, though the passage of time might make proving causation more difficult.
What are the rules around transferred intent and IIED?
Transferred intent DOES NOT apply to IIED when D intended to commit a diff intentional tort (e.g., battery) against a diff V. But transferred intent may apply to IIED if, instead of harming intended person, D’s extreme conduct harms another. If transferred V is intended V’s immediate family, recover with or w/out bodily injury. If other bystander, can recover only if results in bodily injury.
What are the rules for public figures/concerns wrt IIED?
Public figures: Must show… 1. Falsity and 2. Actual malice Public concern: Private P cannot recover if issue was of public concern.
Amount of damages for IIED:
Can recover for severe emotional distress, but not beyond reasonable person’s endurance unless D knows of P’s heightened sensitivity?
What are the elements of false imprisonment?
1) Intent: To confine or restrain another within boundaries with no reasonable means of safe escape. a) Purposeful act or b) Knowing confinement is substantially certain to result. 2) V is conscious of confinement or harmed by it.
What are possible methods of confinement for purposes of false imprisonment?
- Physical barriers or force 2. Threats 3. Invalid use of legal authority 4. Duress 5. Failure to provide means of escape
Does the time of imprisonment matter for purposes of false imprisonment?
No. But can affect amount of damages.
What kind of damages must be shown for false imprisonment claim?
None. Except actual damages necessary if P was unaware of the confinement.
What is shopkeeper’s privilege wrt false imprisonment?
Shopkeeper has right to reasonable detention of suspected shoplifter.
What are the diff defenses to intentional torts involving personal injury?
1) Consent 2) Self-defense 3) Defense of others 4) Defense of prop 5) Parental discipline 6) Privilege of arrest
What kinds of consent exist for purposes of mounting a defense against an intentional tort claim? When is consent invalid?
Express. Invalidated by duress, fraud as to essential matter, and mistakes caused or knowingly utilized by D. Implied. By custom/usage, emergency situations, consensual combat/athletics. Consent invalid if lack of capacity (e.g., youth, intox, incompetence).
What kind of force is ok for self-defense? When is deadly force ok? Does a reasonable mistake invalidate this defense?
Reasonable force proportionate to anticipated harm. Deadly force is ok only if reasonable belief of serious bodily injury/death. Reasonable mistake does not invalidate this defense.
When a person using force in self-defense unintentionally harms an innocent third party, the person is not liable for injuries to the third party that occur while the person is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the person was not negligent with respect to the third party.
Is there a duty to retreat (instead of self-defense)?
Majority: No?
Can initial aggressors be entitled to self-defense claim?
Generally no
Is someone using self-defense liable for injuries to bystanders?
No, so long as injuries were accidental and not negligent.
What are the rules about defense of others?
Same defense rules as for self.
What are the rules about defense of prop?
Reasonable force allowed if reasonable to prevent tortious harm to prop. But no deadly force allowed, including deadly traps. Exception: Visitor acting under necessity. Generally not permitted to repossess land/realty?
What are the rules about parental discipline?
Reasonable force/confinement ok considering age of child and gravity of behavior.
Do educators have the same privilege of parental discipline as parents?
Yes, unless parent restricts the privilege.
What are the rules around privilege of arrest?
Felonies: 1. Private individuals: Fine if crime was actually committed and reasonable to suspect that person arrested committed it. Reasonable mistake only a defense as to ID. 2. Police: Ok if reasonable to believe it was committed and to suspect the person arrested. So can also be mistaken about commission of crime. Misdemeanors: 1. Private and police: Only ok if committed in presence of arresting party. 2. Private: Ok only if it was breach of peace.
What is trespass to chattels/tangible personal prop and its requirements?
Intentional interference with P’s right of possession by either dispossessing, using, or intermeddling with P’s chattel. Intent req: Only need intent to do the act (not trespass). Transferred intent applies.
Is mistake of law or fact a defense to trespass to chattels?
No
What kind of damages are awarded in trespass to chattel cases?
Actual and loss of use. No loss of use damages without dispossession.
What are the remedies for trespass to chattel?
- Compensation for diminished value or 2. Cost of repair
What are the elements of conversion?
1) Intent: Must only intend to commit the act that interferes (intent to damage not necessary). Transferred intent does NOT apply; must intend to control the particular prop. 2) Interference: With P’s right of possession. 3) Seriousness: So serious that it deprives P of use of the chattel. Based on duration/extent, intent to assert a right, D’s lack of good faith, extent of harm and P’s inconvenience.
Is mistake a defense for conversion?
No
What damages are available for conversion?
- Full value of prop, or 2. Replevin: A suit to recover personal property wrongfully obtained by another.
What are the elements of trespass to land?
PIP pip: 1) Proper P: Anyone in actual or constructive possession of land. 2) Intent: To enter land or cause physical invasion (not to trespass specifically). Transferred intent applies. 3) Physical invasion of prop. (Constructive possession: The power to control an item without physical possession of it. Ex: When a buyer has received title to property but not yet physically occupied it.)
What are the rules about the necessity defense to trespass to land (private vs. public)?
Private: Qualified privilege for limited number of people to enter or remain on land to protect own person/prop from serious harm. Not liable for trespass but resp for actual damages. Public: Unqualified/absolute priv to avert public disaster. Not liable for damage if actions reasonable or reasonable belief that necessity existed, even if initial entry not necessary.
What is private nuisance? Define the elements.
Definition: Substantial and unreasonable interference with another’s use or enjoyment of his land. 1. Interference: Must be intentional, reckless, negligent, or result of abnormally dangerous conduct. 2. Substantial: Offensive to average reasonable person in the community (objective standard). 3. Unreasonable: Injury caused outweighs usefulness of action.
What are defenses to private/public nuisance?
- Regulatory compliance. Incomplete defense. Admissible but not determinative.
- Coming to the nuisance. Does not entitle D to judgment as matter of law but jury may consider. It is generally not a defense that the plaintiff “came to the nuisance” by purchasing property in the vicinity of the defendant’s premises with knowledge of the nuisance operated by the defendant.
What is a public nuisance?
Unreasonable interference with right common to the general public. P must suffer harm different in kind from general public.
What are the remedies for nuisance?
- Damages 2. Injunctive relief. Balance the equities (where competing interest are weighed against each other in an effort to determine the most appropriate outcome of a dispute).
What are the rules around abatement for private/public nuisances?
Private: Reasonable force permitted to abate. Must give D notice of the nuisance and D must refuse to act. Public: Absent unique injury, public nuisance may be abated only by public authority.
What is negligence?
Failure to exercise care a reasonable person would exercise. Breach of duty to prevent foreseeable risk of harm to anyone in P’s position.
What are the elements of negligence?
1) Duty: obligation to protect against unreasonable risk of injury 2) Breach: failure to meet that obligation 3) Causation: close causal connection btw action and injury 4) Damages: loss suffered
Describe the duty element for negligence
Owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care. Foreseeability of harm to another sufficient to create general duty to act with reasonable care.
Is there a duty to act?
Generally no. Exceptions: 1) Assumption of duty 2) Placing another in peril 3) By contract 4) By authority 5) By relationship (e.g., employer-employee, parent-child, common carrier-passenger) 6) By statute imposing obligation to act
What is the rule around foreseeability of harm to P wrt duty element of negligence?
Palsgraf/Cardozo majority rule: D only liable to Ps within zone of foreseeable harm. Minority/Andrews rule: If D can foresee harm to anyone resulting from his neg, D owed duty to everyone harmed (foreseeable or not).
Is D liable for negligently putting rescuer in danger?
Yes. But can apply comparative resp if rescuers’ efforts are unreasonable. And firefighter rule: Emergency pros barred from recovery if injury results from risk of the job.
Is there a duty of care to fetuses?
Yes if viable at time of injury.
What is the standard of care for negligence?
Reasonably prudent person. Objective standard.
What kind of characteristics are considered in determining reasonableness (for neg)?
Physical, but not mental
Is a voluntarily intoxicated person held to a diff standard than a sober person for neg?
No, held to same standard
What standard is a child held to for neg purposes?
Reasonable child of similar age, intelligence, and experience.
But child engaged in high-risk adult activity held to adult standard.
Children under age of 5 generally found incapable of neg conduct.
What standard of care is a common carrier held to for negligence? (Planes, buses, trains)
Majority/CL??: Highest duty of care consistent with practical operation of the business.
3rd restatement/majority??: Reasonable care toward their passengers and guests.
What standard of care is an innkeeper held to for negligence?
Majority: Ordinary neg. Reasonable care toward guests.
CL: Slight neg? Highest duty of care consistent with the practical operation of the business.
What standard of care are automobile drivers held to for negligence?
Majority: Absent guest statute, ordinary care to guests as well as passengers.
Minority: Absent guest statute, refrain from wanton & willful misconduct??
Guest statute: Wanton & willful misconduct??
What standard of care is a bailor held to for neg?
Bailor = One who gives possession of personal property to another, a bailee, for its care or safekeeping.
Gratuitous: Duty to warn bailee of known dangerous defects
Compensated: Duty to warn bailee of defects that are known or should have been known by the bailor had he used reasonable diligence
What standard of care is a bailee held to for neg?
Gratuitous: Liable only for gross neg
Compensated: Must exercise extraordinary care
Mutual benefit: Must take reasonable care
What standard of care is a seller of real prop held to for neg? What duties do they have?
Duty to disclose known, concealed, unreasonably dangerous conditions.
Liability to third parties continues until buyer has a reasonable opp to discover and remedy defect.
What is the standard of care for possessors of land towards trespassers?
Traditional/majority: Refrain from willful, wanton, reckless or intentional misconduct towards trespassers.
- No “spring-guns.”
- Wrt discovered stuff: warn or protect against concealed, dangerous, artificial conditions
- Wrt undiscovered stuff: generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee
- Wrt attractive nuisance: Liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate the danger, burden of eliminating danger slight compared to risk of harm, and owner fails to exercise reasonable care to protect children.
Modern/restatement (minority): Reasonable care under all circs, but fact of trespass considered by jury in determining reasonable care.
- Wrt flagrant trespassor: Duty not to act in intentional, willful, or wanton manner causing physical harm is only duty owed
What is the standard of care for possessors of land towards invitees?
Traditional/majority: Reasonable care to inspect, discover dangerous conditions, and protect invitee from them. Non-delegable. Duty does not extend beyond scope of invitation.
Recreational land use (some jx): Possessor who opens land to public for recreation generally not liable for injuries sustained by recreational land users unless
- Charges fee or
- Acts willfully, maliciously, or with gross neg.
Modern/restatement (minority): Reasonable care under all circs.
What is the standard of care for possessors of land towards licensees?
Traditional/majority: Warn of concealed dangers that are known or should be obvious. Use reasonable care in conducting activities on the land. No duty to inspect.
Modern/restatement (minority): Reasonable care under all circs.
What is an invitee?
Someone who is invited to enter for purposes for which the land is held open or for business purposes
What is a licensee?
Enters land of another with permission or privilege (ex: social guest, emergency personnel)
What is the standard of care for landlords for neg?
Landlord liable for injuries occurring:
- In common areas resulting from hidden dangers about which landlord fails to warn,
- On premises leased for public use,
- As a result of a hazard caused by neg repair, or
- Involving a hazard landlord agreed to repair
What is the standard of care for tenants for neg?
Liable for injuries to third parties due to conditions within their control.
What is the standard of care for possessors of land towards off-premises victims?
No duty for harm by natural condition. Exception: rotting trees in urban areas.
Duty to prevent unreasonable risk of harm caused by artificial condition.
What is the standard of proof for a breach or violation of the duty of care wrt negligence (detailed)?
Preponderance of the evidence: Greater probability than not that D failed to meet standard of care, as shown by custom/usage, statutory violation, or res ipsa loquitur.
P must show failure was proximate cause of injury and P suffered damages.
How do you determine whether there has been a breach/violation of the duty of care for negligence?
Traditional: Compare D’s conduct with what reasonably prudent person would do under the circs. Objective.
Modern/restatement (cost-benefit analysis): Consider:
- Foreseeable likelihood that D’s conduct would cause harm,
- Foreseeable severity of resulting harm, and
- D’s burden in avoiding the harm.
Is evidence of custom admissible for determining whether there has been a breach/violation of duty of care for neg?
Evidence of custom is generally admissible but not conclusive in establishing proper standard of care.
What standard wrt custom is used for professionals (not physicians) wrt negligence? Is it dispositive? What about specialists? How is the customary standard of care established?
Expected to show same skill, knowledge, and care as ordinary practitioner in same community. Deviation or compliance with custom is dispositive for breach.
Specialists may be held to higher standard.
Expert must generally establish the standard of care unless neg is so obvious that it would be apparent to a layperson. Ex: surgeon amputating wrong leg.
What custom is used for physicians wrt negligence?
Majority: national standard (including specialists)
Minority/traditional rule: “same or similar locale” standard
What is the rule about informed consent requirement in medical setting for negligence?
Failure to comply with informed consent requirement is med neg (malpractice) unless:
- risk is commonly known,
- patient unconscious,
- patient waives or is incompetent, or
- disclosure too harmful
What are the elements of negligence per se?
- Crim or regulatory statute imposes a specific duty for protection of others
- D neglects to perform the duty
- D liable to anyone in the class of people intended to be protected by statute
- For harms of the type the statute was intended to protect against
- Proximate causation?
Defenses to neg per se
- Compliance impossible or more dangerous than noncompliance
- Violation reasonable under the circs
- Statutory vagueness or ambiguity
- Compliance with fed reg preempts CL tort action?
Res ipsa loquitur definition
Under certain circumstances, the very fact that an accident occurred leads to an inference that the accident was caused by negligence.
Res ipsa loquitur elements
- P’s harm would not have occurred if D had used ordinary care. P need not conclusively exclude all other possible explanations.
- P not resp for injury (loosely applied in most comparative fault jx).
- P’s injury under D’s exclusive control.
- Modern trend: generous interp of exclusivity.
- Many jx ignore exclusivity for product liability if manufacturer wrapped package or clear that neg took place during production.
- If med personnel had access to P during surgery in malpractice claim, some jx presume each D has breached duty unless each D rebuts.
What are the types of causation needed to establish neg?
Cause in fact/actual cause + proximate cause/scope of liability