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Business Law Redo > Torts > Flashcards

Torts Flashcards

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1
Q

what type of law does torts belong to?

A

substantive law (substance of your rights and what you can sue about)

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2
Q

other names for torts

A
  • claims

- doctrine

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3
Q

tort

A
  • civil wrong that’s not a contract or warranty
  • types of laws involved:
    • state law (50 different versions = restatement)
    • private law
    • judge made law (common law)
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4
Q

2 elements of intentional torts

A
  • state of mind

- conduct / action

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5
Q

purpose / goals

A
  • plaintiff get compensation

- deter defendant

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6
Q

categories of torts

A
  • intentional torts (12)
  • business torts (2)
  • unintentional (negligence) tort
  • strict liability torts
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7
Q

states of minds

A
  1. malice = bad motive; want to harm; ill-will
  2. intent = purpose or knowledge with substantial certainty (most courts want this proven)
  3. recklessness = consciously disregard a known risk
  4. negligence = unintentional

*** 1-3 are intentional; plaintiff gets compensation; defendant pays punitive damages as deterrence

*** jury decides the state of minds facts

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8
Q

Motel 6 Case Brief

A
  • customers complain about bed bugs
  • motel knew about bed bugs

Trial Court

  • customers sue for negligence
  • verdict = plaintiff wins; $5k compensatory damages & $186k punitive damages to each plaintiff

Appellate Court

  • Motel 6 appeals because of high punitive damages (says unconstitutional because due process clause sets limit on punitive damages)
  • court affirms decision

Legal Issues

  • ruled as intent instead of reckless/negligence because Motel 6 knew with substantial certainty about the bed bugs
  • they’ve been told by an exterminator for 2 years about bed bugs but didn’t really do anything
  • would rent out “do not rent” rooms when they were busy
  • when compensatory damages are low, then punitive damages should be high to deter
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9
Q

types of intentional torts

A
  1. battery
  2. assault
  3. intentional infliction of emotional distress
  4. false imprisonment
  5. defamation
  6. invasion of privacy

Misuse of Legal Proceedings

  1. malicious prosecution
  2. abuse of process
  3. deceit

Intentional Torts Against Property

  1. trespass to land
  2. private nuisance
  3. conversion of personal property
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10
Q

types of business torts

A
  1. intentional interference with contract or economic advantage
  2. intentional employment tort
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11
Q

battery

A
  1. intentional (to cause touching or fear of it)
  2. unconsented
  3. harmful / offensive touching (could be indirect form of touching)
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12
Q

assault

A
  1. intentional (to cause touching or fear of it)
  2. unconsented
  3. reasonable fear of immediate harm
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13
Q

intentional infliction of emotional distress

A
  1. intentionally or recklessly cause
  2. extreme and outrageous conduct (“beyond the bounds of civilized society”)
  3. severe emotional distress
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14
Q

false imprisonment

A
  1. intentionally
  2. cause confinement
  3. for an appreciable time (can be a few seconds)
  4. without consent
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15
Q

merchant protection statute defense (for retailers on false imprisonment)

A
  1. reasonable suspicion of shoplifter
  2. stopped for a reasonable amount of time
  3. manner in which they investigate has to be reasonable
  • if all 3 elements are met, the merchant is not liable for false imprisonment
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16
Q

defamation

A
  1. unprivileged (AP or QP)
  2. publication (just need to prove that 1 other person heard)
  3. of a false and defamatory
  4. fact (not an opinion)
  5. made with negligence (private plaintiff) or actual malice (public plaintiff) - state of mind
AP = absolute privilege (litigator)
QP = qualified privilege (employer referral in good faith)
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17
Q

Katko v. Briney Case Brief

A
  • P was trespassing and injured from a spring loaded shotgun

Legal Issues

  • no trespassing sign
  • can people use spring loaded shotguns to protect uninhabited property
  • can people “booby trap” their homes to protect against trespassing / robbery

Results

  • use of force must be reasonable depending on the situation (cannot kill or seriously injure)
  • cannot use deadly force to protect uninhabited property
  • even though P was trespassing, he was unarmed, so the use of a shotgun is not reasonable
  • spring loaded shotguns are now illegal
  • Supreme Court affirms ruling that P wins
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18
Q

Roach v. Stern Case Brief

A
  • P’s cremated remains were brought onto D’s show
  • D starts to joke and make inappropriate comments about P
  • D starts to play and chew with remains

Procedural History

  • P’s family sues for mishandling of corpse and emotional distress in trial court
  • D files for motion to dismiss and court grants it because no emotional distress is present
  • P appeals

Legal Issues

  • was emotional distress present
  • yes because it was done for entertainment purposes and against the wishes of P’s family

case goes back to trial court because appellate court says that there was emotional distress

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19
Q

Faniel v. Chesapeake Case Brief

A
  • P had possession of 3 unauthorized phones and employer takes P home with security guards to retrieve phones
  • P sues for false imprisonment
  • while P wins, judge issues JNOV and grants D the win
  • P appeals

Legal Issues

  • was P false imprisoned when she willingly got into the car?
  • no because she didn’t express concern over the route or wanted to leave the car
  • P said that she thought that she had to get in the car or else she would lose her job
  • this was not enough evidence to prove false imprisonment because P testified that she didn’t feel threatened
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20
Q

invasion of privacy

A
  1. intrusion upon seclusion
  2. public disclosure of private facts (to a lot of people)
  3. false light publicity (similar to defamation but doesn’t have to be harmful)
  4. commercial appropriation of name or likeness
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21
Q

malicious prosecution (misuse of legal proceedings)

A
  1. defendant intentionally filed a lawsuit (criminal or civil)
  2. without probable cause
  3. for an improper purpose
  4. terminates in the (now) P’s favor
    • this element isn’t met until after the first lawsuit
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22
Q

abuse of process (misuse of legal proceedings)

A
  • initial lawsuit filed legitimately

- during civil litigation process, someone starts abusing process

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23
Q

deceit (aka fraud in contract law)

A
  1. false statement (or omission, silence, cover-up, etc.)
  2. of material fact
  3. that was knowingly or recklessly made
  4. with intent to induce reliance
  5. actual, justifiable, and harmful reliance
24
Q

intentional torts against property

A
  1. trespass to land
  2. private nuisance
    - intentional
    - substantial and unreasonable interference of enjoying their own property
  3. conversion of personal property (same intent as trespass - voluntarily)

1 & 2 = real property
3 = personal property

25
Q

intentional interference with contract or economic advantage (business tort)

A
  1. existence of a valid (not void) contract between the plaintiff and a 3rd party
  2. D had knowledge of that contract
  3. D intentionally (motive) and unfairly (means) interfered with the contract causing its breach
  • some states recognize a separate tort of “interference with economic advantage / business relations” which does not require an existing contract
26
Q

intentional employment tort (business tort)

A
  1. employer had actual knowledge of a dangerous condition of employment
  2. employer had actual knowledge that if the employee is subjected to the dangerous condition, harm is certain, or substantially certain to occur
  3. employer required the employee to be subjected to the dangerous condition (i.e., job requirement, etc.)
27
Q

Stephens v. Pillen

A
  • Pillen has hog farm creating a nuisance smell
  • Pillen had complaint filed to notify of smell

Trial Court
- P sues D in 2000
- P wins but no damages were awarded and D needs to re-evaluate their facilities and procedures to reduce smell
Appellate Court
- both sides had issues with ruling
- P wants damages awarded
- D says there’s not enough evidence for nuisance smell
- court affirms nuisance smell & awards damages to P because trial court made legal mistakes (court thought that medical bills, property bills, etc. needed to be provided to show as evidence of nuisance)

28
Q

Soldano v. O’Daniels

A
  • Soldano was shot and killed
  • a good Samaritan went over to the store that the defendant owned to ask to use the phone to call for help
  • D’s employee denied the use of their phone
  • P sues for wrongful death (a negligence case which allows for relatives of the deceased to sue)
  • case was dismissed before trial because “there’s no duty to help/rescue”

Factors

  • was the harm foreseeable? YES
  • was there certainty of harm? YES
  • was there a close connection between the employee and the harm? (YES b/c the phone call could have prevented his death)
  • was the employee’s action morally wrong? YES
  • policy of deterrence? YES
  • availability of insurance? N/A
  • what was the extent of the burden minimal for D? small burden (using the phone would not cause the business a huge burden)
  • most of these factors are saying that D had a duty

** appellate court reverses dismissal and case goes back to trial court

court defined duty in this case:

  • only during business hours
  • no private residences
  • immediate danger of physical harm
29
Q

negligence

A
  • unintentional tort

elements of negligence:

  • duty
  • breach
  • causation
  • damages
  • negligence law requires that there be damages in order to sue
  • intentional torts don’t require damages
30
Q

transferred intent

A
  • usually occurs with assault/battery

- ex: if someone wanted to harm A but actually harmed B instead, then that intent is transferred from A to B

31
Q

foreseeability

A
  • at the time the defendant acted: could they foresee the injury/harm happening to the plaintiff?
  • IS NOT “looking back, could this have happened” b/c this would be unfair to D
32
Q

negligence: duty definition

A
  • act like reasonable person under the circumstances (objective test)
  • special relationship calling for such duties between the parties (i.e. landlord/tenet, etc.)
33
Q

negligence: breach factors

A
  • foreseeability of harm
  • seriousness of harm
  • social utility of conduct (benefit of the conduct)
  • ease or difficultly of avoiding the risk of harm
  • the higher the burden, the less likely it’s a breach
34
Q

duty and breach: special rules

A
  • professional (usually need an expert witness) = higher standard of duty
  • possessors of land (premises liability) = someone injured someone else’s property
  • rescuers = no duty to rescue unless special relationship
  • res ipsa loquitur (“thing speaks for itself”) = harm couldn’t happen unless someone acted unreasonably
  • negligence per se = legislation (ordinances/statutes)
35
Q

possessors of land: elements to prove negligence

A
  • actual or constructive notice of the danger
  • ex: would the danger have been seen by a reasonable retailer?
  • ex: how long it the danger on the floor?
36
Q

res ipsa loquitur

A

2 elements

  • exclusive control of instrumentality of harm (defendant)
  • harm wouldn’t happen without someone acting unreasonable
37
Q

negligence per se

A

2 elements

  • plaintiff was within the class of persons that the legislation was meant to protect
  • plaintiff suffered the kind of harm that the legislation was trying to prevent
38
Q

Martin v. Walmart

A
  • P was shopping in shotgun aisle and slipped and fell b/c someone opened a shell and left the pellets on the floor
  • P sues for negligence and wins due to directed verdict
  • Walmart appeals

Legal Issues
Was there actual or constructive notice? CONSTRUCTIVE
- employee should have known about the danger if they were a reasonable retailer
Was there enough facts? YES
- the aisle where P fell is known as “action alley” b/c it gets the most traffic
- dept was understaffed that day
- an employee walked by the aisle 5 min before P fell
- the opened shotgun shell was found on top of the display case
- believed that the danger was on the floor for an hour

39
Q

Chrystal v. Hawkes Hospital

A
  • P got breast reduction and lost a lot of blood and received blood transfusions
  • one of the blood transfusions were not tested and P got AIDS
  • P sues for negligence on medical malpractice
  • P wins $8M in damages
  • D files for new trial motion b/c they thought that the jury was biased and that the damages were too high & wanted to discuss remote cause
  • motion was not granted so D appeals

Legal Issue
Was AIDS foreseeable? YES
- has now been documented that AIDS is transferred through blood
- expert testimony that doctors should be aware of how AIDS is transferred
- there was a conference at the hospital talking about the transfer of AIDS

  • court affirmed
  • hospital should have tested blood
  • there was a lot of info on how AIDS is transferred
40
Q

Stahlecker v. Ford Motor Co

A
  • P’s tire malfunctioned and was stranded on the side of the road
  • P was kidnapped, raped, and murdered
  • P’s parents sue for wrongful death b/c Ford knew that the tires could fail due to its history
  • court grants motion to dismiss b/c Ford was not liable for the death since it was unforeseeable

Legal Issues

  • was the death foreseeable? NO b/c there was an intervening cause which means there’s no proximate cause
  • criminal act is unforeseeable (actual cause is present but the crime couldn’t have been foreseen due to the tire malfunction)
  • court affirms motion to dismiss
41
Q

actual cause

A
  • facts = connects breach to injury
  • aka “but for” cause or factual cause
  • substantial factor (2 concurrent causes)
42
Q

proximate cause

A
  • policy question based on fairness

- wants to be fair to D b/c injury/harm may be unforeseeable

43
Q

intervening cause

A
  • unforeseeable intervening cause so then there’s no proximate cause
  • in between actual and proximate cause due to event, person, etc. intervening
44
Q

causation of injury

A
  • actual cause
  • proximate cause
  • intervening cause
45
Q

damages

A
  • compensatory damages ( personal injury, property damages, economic loss)
  • punitive damages ( has to prove an intentional state of mind - reckless, malice, etc.)
  • eggshell plaintiff concept = D is liable for all injuries once negligence is proven
46
Q

negligence defenses

A
  1. contributory negligence = if plaintiff is responsible for their own injury (even if just a little bit), then D wins
  2. comparative negligence = both P and D are responsible for the damages they caused
  3. assumption of the risk (express/implied)
    • express = comes in the form of a contract/waiver where risks are stated
    • implied = implied from facts/circumstances; can infer the risks; foreseeability of risks
47
Q

2 versions of comparative damages

A
  • pure = doesn’t matter what % P is responsible for, both pays their responsible damages
  • modified = if P is responsible for > 50% of injury, then P loses
48
Q

strict liability: 2 ways

A
  1. abnormally dangerous activities (activities that can’t be made safe no matter what)
  2. products liability (negligence and strict liability)
49
Q

kinds of abnormally dangerous activities

A
  • keeping wild animal (oldest form)
  • crop dusting
  • blasting
  • fireworks
  • stunt flying
50
Q

products liability

A
  • manufacture = improper assembly, materials, or packaging
  • inspection = inspect for defects
  • failure to warn or inadequate warning
  • design = design products to avoid reasonably foreseeable risks

*can sue for negligence

51
Q

strict product liability: 3 elements

A
  1. seller is engaged in the business of selling the product
  2. product is “defective” when sold and “unreasonably dangerous”
  3. causes harm
52
Q

2 tests to determine “defective & unreasonably dangerous”

A
  1. consumer expectation test = what a reasonable consumer expects as dangerous from the product
  2. risk-benefit test = ask jury to look at the risk of the product and compare it to the benefits; if the risks outweigh the benefits, then the product is deemed unreasonably dangerous

*** just needs to meet 1 test

53
Q

strict liability: 4 types of defects

A
  1. manufacturing = how it was made; incorrectly assembled, physically flawed, damaged, etc.
  2. design = involves all products
  3. packaging = product is fine but the way it was packaged caused harm
  4. failure to warn (or inadequate warning) = should have explained how to use the product
54
Q

product liability: defenses

A
  • unforeseeable product misuse
  • assumption of the risk
  • contributory / comparative negligence
55
Q

strict liability definition

A
  • liability without fault, or, perhaps more precisely, irrespective of fault
  • the defendant is liable even though he did not intend to cause the harm and did not bring it about through recklessness or negligence
56
Q

can the plaintiff sue anyone for strict product liability?

A

yes if the productive is defective so the plaintiff can sue anyone who touches the product during manufacturing

57
Q

what special relationships can be used to have the judge determine duty and breach instead of the jury?

A
  • negligence per se

- res ipsa loquitor

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