Torts Flashcards
Battery
- Harmful or offensive contact by ∆ 2. With the person of the π
Assault
- Placing π in reasonable apprehension 2. Of an immediate battery *Words alone are not enough
False Imprisonment
- An act of restraint by ∆ 2. Confining π to a bounded area 3. Where π knows of the restraint or is harmed by it
Intentional Infliction of Emotional Distress (IIED)
- Extreme and outrageous conduct by ∆ 2. Exceeding the bounds of civil society 3. Causing severe emotional distress *Intentional or reckless
Intentional Trespass to Land
- Physical invasion 2. Onto land of another *Not elemental invasion (that is nuisance)
Trespass to Chattels / Conversion
- Intentional interference 2. With the personal property of another *Trespass: reduction in value or temporary *Conversion: a complete loss of value or permanent
Express Consent Defense
AFFIRMATIVE DEFENSE 1. π with legal capacity 2. Oral or written affirmative agreement 3. Reasonable in interpretation 4. ∆ acting within the scope of consent
Implied Consent Defense
AFFIRMATIVE DEFENSE 1. π with legal capacity 2. Implied through custom, OR ∆’s understanding of π’s objective behavior and surrounding circumstances 4. Reasonable in interpretation 5. ∆ acting within the scope of consent
Self-Defense/Defense of Others
- ∆ perceived threat from π 2. Was actual or imminent 3. ∆’s belief was reasonable 4. Proportionate *Presumption that car/home intruder intends to act with deadly force
Defense of Property
- ∆ perceived threat from π 2. Was actual or imminent 3. ∆’s belief was reasonable 4. Proportionate *No deadly force or mechanical traps
Public Necessity Defense
- ∆ commits property tort 2. In response to an emergency 3. To protect the public at large *Complete defense
Private Necessity Defense
- ∆ commits property tort 2. In response to an emergency 3. To protect a personal interest *Liable for compensatory damages only
Principle of Negligence
When a person engages in conduct that creates a risk of harm, they owe a duty to all foreseeable plaintiffs to perform that risk-creating conduct with the reasonable care of an ordinarily prudent person under the circumstances.
Negligence Elements
- Duty 2. Breach 3. Actual cause 4. Proximate cause 5. Damages
Special Duties:
Children and Professionals
Children
- < 5: incapable of negligence
- 5 – 18: based on age, experience, and intelligence
- > 18: reasonably prudent person
*Exception for child engaged in an adult activity, where child is held to adult standard for that activity
Professionals
- Average member of the same profession,
- Performing the same service OR
- Industry custom for a regulated industry
*National standard
Premises Liability:
Unknown Trespassers / Felonious Conduct
No duty owed to unknown trespassers or those committing a felony.
Premises Liability:
Known/Anticipated Trespasser & Uninvited Licensees
[Traps that will HACK you to pieces]
Persons with permission, persons who have trespassed before, or who might be reasonably be expected as a trespasser
Duty to remedy or disclose all hazards that are
- Highly dangerous,
- Artificial,
- Concealed, and
- Known to the landowner
Premises Liability:
Invitees & Social Guests
Persons with permission providing an economic benefit, open to the general public, or police/firefighters
Duty to remedy or disclose hazards that are:
- Reasonably discoverable through routine inspection, and
- Concealed
Premises Liability:
Attractive Nuisance Doctrine
Children are owed the duty of a reasonably prudent person under the circumstances
*Must be injured by the thing that lured them onto the land.
Negligence Per Se
Establishes duty and proves breach if a ∆ violates a statute designed to protect
- against the type of harm caused by his conduct
- to the class of persons of which π is a member.
Exception:
- If compliance would be more hazardous than the violation, OR
- If compliance was physically impossible under the circumstances
***Motor vehicle statutes offer some evidence of negligence, but are not dispositive***
Affirmative Duty to Rescue
- Pre-existing legal relationship
- Where ∆ creates a danger that causes harm
- Commencement of voluntary rescue
Duty owed is that of a reasonable person under the circumstances (even under FL’s Good Samaritan Law).
Negligent Infliction of Emotional Distress
Near Miss - fear/anxiety
- Negligent ∆
- π in the zone of danger
- Some form of minimal physical contact with π
- π suffered physical manifestation of distress
Bystander - sadness/grief
- Negligent ∆
- Death or serious bodily harm to a 3rd party
- Witnessed by π who is a close family member
*π need not witness contemporaneously
Florida Punitive Damages Caps
Punitive damages shall not exceed 3x the compensatory damages award or $500,000 for any single claimant.
Exception: There are no limits for damages resulting from conduct by a ∆ who was under the influence of alcohol or a controlled substance, engaged in activity for unreasonable financial gain, intentionally harming the π, or abuse of children and the elderly.
Strict Liability: Animals
- Animal has viscious propensities, and
- Owner has knowledge
and
- All dog bites, unless trespasser or warning sign present
- Any injury involving a wild animal kept by ∆
Strict Liability:
Abnormally Dangerous Activity
- Significant risk of serious injury, even when performed reasonably, AND
- Activity is uncomon in the area it is performed
Strict Liability:
Manufacturing Defect
- ∆ is a merchant
- Product has not be altered
- Use of the product must have been a foreseeable use
- Product differs from its intended design
Strict Liability:
Design Defect
- ∆ is a merchant
- Product is unaltered
- The use of the product is a foreseeable use
- Product is more dangerous than consumers would reasonably expect
Strict Liability:
Information Defect
- ∆ is a merchant
- Product was unaltered
- Use of the product was a foreseeable use
- Product has a non-obvious risk, and
- Product lacks adequate warnings or instructions
*Adequate warnings are reasonably prominent and comprehensible
Nuisance
- Inconsistent or malicious use of ∆’s land causing
- Unreasonable intereference with the use and enjoyment of π’s land
Loss of Consortium
- Loss of household services
- Loss of society
- Loss of sexual gratification
Defamation
- ∆ made a defamatory statement about the π
- Statement was publicized
- Damages
Defamation Damages
Slander Per Se (damages presumed)
- Statement relating to business or profession
- Statement that π committed a serious crime
- Statement that imputes unchastity to a woman
- Statement that π suffers from loathsome disease (VD)
Non-Slander Per Se (must prove economic damages)
Defamation Affirmative Defenses
- Consent
- Truth
- Privilege
- Matter of Public Concern
To overcome Public Concern, must show:
- Public Figures - Knowing falsity or reckless disregard for the truth
- Private Figrures - Statement was false, and made negligently
Privacy Torts
- Appropriation - ∆ used π’s name for a commercial purpose
- Invasion of Privacy - ∆ intrudes upon seclusion of π in a way that is highly offensive to a reasonable person
- Dissemination - Widespread disclosure of confidential information
