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Josh's MBE Cards > Torts > Flashcards

Torts Flashcards

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1
Q

Transferred Intent

A

Applies where D intends to commit a tort against one person but instead:

  1. Commits a different T against that person
  2. Commits same tort as intended but against a diff person; or
  3. Commits a different tort against a DIFFERENT person.

It transfers to the tort actually committed. If you intend an assault but commit a battery against person 2 then you are liable for the battery. Only applicable where the resulting tort is:

  1. Assault;
  2. Battery;
  3. False Imprisonment
  4. Trespass to land; or
  5. Trespass to chattels
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2
Q

Battery

A
  1. Harmful or offensive contact;
  2. To P’s person
  3. Intent; and
  4. Causation.

Damages not required.

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3
Q

Assault

A
  1. An act by D creating reasonable apprehension in P;
  2. Of immediate harmful or offensive contact to P’s person;
  3. Intent; and
  4. Causation.

Apprehension must be reasonable. Fear without apprehension of attack is not enough. Apparent ability suffices.

Words alone without context is insufficient.

The battery must be imminent, not a future threat.

Damages not required.

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4
Q

False Imprisonment

A
  1. An act or omission on the part of D that confines or restrains P to a BOUNDED AREA;
  2. Intent; and
  3. Causation.

Moral pressure and/or future threats insufficient to be restraint or confinement.

P must know of the confinement OR be harmed by it.

There must be no REASONABLE means of escape KNOWN to P.

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5
Q

Intentional Infliction of Emotional Distress

A
  1. Act by D amounting to Extreme and Outrageous conduct
  2. Intent or recklessness;
  3. Causation; and
  4. Damages—severe emotional distress.

Requires ACTUAL DAMAGES

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6
Q

Intentional Infliction of Emotional Distress: Special Circumstances/Bystander

A

Special Circumstances: Conduct that is not normally outrageous may become so if: (i) It is continuous in nature; (ii) Directed toward a certain type of P (children, elderly, sensitive P’s); or (iii) it is committed by a certain type of D (common carriers).

Bystander Cases: (i) where D intentionally causes physical harm to a third person and the P suffers emotional distress the P may recover by either showing the normal IIED elements; OR:

  1. Present when injury occurred;
  2. Close relative of injured/dead third person; and
  3. D knew facts 1 and 2.
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7
Q

Trespass to Land

A
  1. Physical invasion of P’s real property;
  2. Intent (only intent to enter land) and
  3. Causation.

May be by an object, like tossing something onto property. Intangible is probably a nuisance claim.

Real Property includes air and subterranean space.

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8
Q

Trespass to Chattels

A
  1. D’s act interferes with P’s right of possession in chattel (damages or dispossession);
  2. Intent;
  3. Causation; and
  4. Damages.

Usually short term, as opposed to permanent deprivation.

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9
Q

Conversion

A

Same elements as trespass to chattels, but the damage is such that P is entitled to full value of chattel as damage. Examples: destruction of the property, long term wrongful detention, theft, severe damage to property, etc.

Remedy may be FMV of the chattel or possession.

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10
Q

Defenses to Intentional Torts

A
  1. Consent;
  2. Defense of self, others, or property;
  3. Necessity; and
  4. Recapture.
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11
Q

Consent

A

Express Consent (undone if D knew of mistake as to consent and took advantage, if induced by fraud or misrepresentation; obtained by duress (except for only future threats)).

Implied Consent, inferred from reasonable circumstances.

Exception is exceeding consent.

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12
Q

Self Defense

A
  1. Available where a person reasonably believes they are about to be attacked.
  2. No duty to retreat.
  3. Not available to initial aggressor unless non-deadly force is responded to with deadly force.
  4. Reasonable mistake is permitted.
  5. More force than necessary vitiates the defense.
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13
Q

Self Defense: Property

A
  1. May be used, but does not apply after loss of the property. Recapture only available in hot pursuit and the force must be reasonable.
  2. Does not apply to one with a privilege, that will supersede right of self defense. Mistake is NOT allowed as to one who has privilege.
  3. May not use force causing death or seriously bodily harm, even to defend one’s home.
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14
Q

Defense: Recapture of Chattels

A
  1. Timely demand required;
  2. May only be from the tortfeasor who took the chattels;
  3. Privileged to enter onto land of wrongdoer to take the chattels in a reasonable time and reasonable manner AFTER making the demand. Can do so for innocent party as well, but liable for any damage caused by entry,.

Mistake not permitted.

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15
Q

Arrest Without a Warrant

A

Officer:

(i) Privileged when Cop believes felony committed and that the person arrested has committed it; (ii) Force allowed as reasonably necessary to make arrest, Deadly Force only allowed when suspect poses a threat of serious harm.

Citizen:

(i) Privileged for Citizen when a felony has in fact been committed and Citizen must reasonably believe that the person arrested has committed it; (ii) Force allowed as reasonably necessary to make arrest, Deadly Force only allowed when suspect poses a threat of serious harm.

Misdemeanor:

Only Cops can arrest, except for breach of peace and citizen sees it. Deadly force never permitted.

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16
Q

Shopkeeper Privilege

A
  1. Reasonable belief as to theft;
  2. Detention is reasonable manner and reasonable force; and
  3. Only for a reasonable period of time.
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17
Q

Defense: Necessity

A

When necessary to enter onto property of another to protect yourself or others from imminent harm.

If a public necessity, to protect public, then no liability to owner of land. If private necessity then liable only for resulting damage of the entry.

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18
Q

Negligence

A
  1. Duty on the part of a D to conform to a specific standard of conduct;
  2. Breach of that duty by D;
  3. Breach is the actual and proximate cause of P’s injury; and
  4. Damage.
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19
Q

Negligence: Duty of Care

A
  1. Was P foreseeable?
  2. If so, what is applicable standard of care?

Rescuer is a foreseeable P, but firefighter/cops may be barred from suing.

Wrongful life not allowed.

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20
Q

Negligence: Standard of Care

A

Basic Standard - Reasonably Prudent Person: Objective standard, measured against what an average person would do. This average person is a hypothetical a reasonable person of average intelligence and physical characteristics (however considered to have same physical characteristics as the D).

If you have better than the average person, then you must use those experience/capabilities as a reasonable person would.

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21
Q

Negligence: Particular Standards of Care

A
  1. Professionals: The standards of their profession. Doctor breaches this by not disclosing risks.
  2. Children: Of like age, education, intelligence, and experience. Under 5 there is a presumption they cannot be negligent. If engaged in adult activities may be presume an adult standard of care.
  3. Common carrier: Very high, even slight negligence, but P must be a guest.
  4. Guest in car owed ordinary care. L
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22
Q

Negligence: Bailment Duties

A

Bailee standard of care depends on who benefits from the bailment:

  1. If for the sole benefit of the bailor, there is low standard of care
  2. If for sole benefit of the bailee, there is a high standard of care;
  3. If for mutual benefit, then a ordinary standard of care.

Duties of Bailor, where for benefit of bailee, inform of known dangerous defects in the chattel.

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23
Q

Owners and/or Occupiers of Land: Duty Owed to Undiscovered Trespasser, Discovered or Anticipated Trespasser, Child, Licensee, and Invitee.

A

Types of conditions

Undiscovered Trespasser: No duty.

Discovered or Undiscovered Trespasser: (i) Duty to warn of or make safe of artificial conditions if non-obvious and highly dangerous; and (ii) Duty of reasonable care for active operations.

Child: (i) Duty to warn of or make safe artificial conditions if foreseeable risk to child outweighs expense of eliminating danger; (ii) re: natural conditions, same as (i) but balancing test less likely to be met; and (iii) Duty of reasonable care for active operations.

Licensee: (i) Duty to warn of or make safe artificial conditions if non-obvious and dangerous; (ii) Duty to warn of or make safe natural conditions if non-obvious and dangerous; and (iii) Duty of reasonable care for active operations.

Invitee: (i) Duty to make reasonable inspections and discover non-obvious dangerous artificial conditions and warn of or make them safe; (ii) Duty to make reasonable inspections and discover non-obvious dangerous natural conditions and warn of or make them safe; and (iii) Duty of reasonable care for active operations.

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24
Q

Attractive Nuisance Doctine

A

Applicable where:

  1. A dangerous condition on the land that owner is or should be aware of;
  2. The owner knows or should know children frequent the vicinity of the condition;
  3. the condition is likely to cause injury; and
  4. The expense of remedying the situation is slight compared with the magnitude of the risk.

Liability can only attach if ALL four are met.

Remember the child DOES NOT have to be initially attracted onto the land by the dangerous condition.

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25
Q

Licensee

A

One who enters onto the land with the possessors permission for her OWN BUSINESS OR PURPOSE.

Social guests, fire fighters, police.

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26
Q

Invitee

A

Invited by landowner in connection with landowner’s business, or on land held open to the public.

Members of the public, business visitor.

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27
Q

Duty Owed to Users of Recreational Land

A

A landowner who permits public to use land for fun without charging a fee is not liable for injuries suffered by user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition.

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28
Q

Duties of Lessor and Lessee

A

LL may be liable to TT of defects which is aware of or has reason to know, and which lessee not likely to discover. But TT can still be liable to the guests of TT.

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29
Q

Statutory Standards of Care

A

Replaces more general common law duty of care where:

  1. P is within protected class; and
  2. Statute was designed to prevent the harm suffered by P.

Creates conclusive presumption of duty and breach of duty. Negligence per se.

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30
Q

Duty Re: Negligent Infliction of Emotional Distress

A
  1. P must be within zone of danger; and
  2. P must suffer physical symptoms from the distress.

severe shock to the nervous system is enough.

Exception:

  1. P and person injured are closely related
  2. P was present at the scene of injury; and
  3. P personally observed or perceived the event.
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31
Q

Negligence: Affirmative Duties to Act

A

Generally no duty, except:

  1. When you render aid, must do so with reasonable care. (exception for good Samaritan statutes)
  2. Peril is due to D’s conduct.
  3. Special relationship between parties, parent child, common carrier, etc.
32
Q

Res Ipsa Loquitur

A

Applies where:

  1. The accident causing injury is a type that would not normally occur unless someone was negligent; and
  2. The negligence is attributable to the D.

Effect: Prima facie case established, but P can still lose if the inference of negligence is rejected by the trier of fact. Motion for directed verdict should almost always be denied.

33
Q

Causation

A

Must show actual cause and proximate cause.

Actual Cause: (i) “But for”; (ii) Where several causes bring about injury and any one alone would be sufficient, the D’s conduct is the cause in fact if it was a substantial factor; and (iii) Where same as (ii) but we don’t know which, each D must show their negligence was not the cause.

Proximate Cause: Legal causation.

34
Q

Proximate Cause

A
  1. Foreseeable risk that is the normal result of the negligence.
  2. Liable for all foreseeable harmful results. Most harmful results will be deemed foreseeable.
35
Q

Liability in Indirect Cause Cases

A

The following are almost always foreseeable:

  1. Subsequent medical malpractice;
  2. Negligence of rescuer;
  3. Reaction to D’s conduct; and
  4. Subsequent disease or accident caused by original injury.
36
Q

Independent Intervening Forces

A

Cuts off chain of liability:

  1. Negligent act of third parties;
  2. Crimes and intentional torts of third persons; and
  3. Acts of God.
37
Q

Damages

A

Economic, pain and suffering, cost of repair, replacement of property.

Duty to mitigate damages.

38
Q

Contributory Negligence

A

Where P’s own negligence contributes to her injury.

Blocks recovery. Is negated by last clear chance rule.

Does not apply to wanton or reckless tortious conduct.

Last clear chance ONLY applies to contributory negligence.

39
Q

Last Clear Chance Rule

A

Avoids contributory negligence where person with last clear chance to avoid an accident fails to do so.

Generally applicable where:

  1. P is in helpless peril, and D knew or should have known.
  2. P is in inattentive peril, if D actually knew.

Only applies if D was ABLE to but FAILED to avoid harming P. If D’s only negligence is before P’s injury then not applicable.

40
Q

Implied Assumption of the Risk

A

P knew of a risk of injury and voluntarily assumed it.

Effect: P’s claim is barred.

Defense does apply to wanton or reckless tortious conduct.

41
Q

Pure Comparative Negligence

A

P’s own negligence contributes to her injury.

Effect: P’s damage award reduced by percentage of fault attributable to her.

Applies to reckless/wanton/tortious conduct.

42
Q

Partial Comparative Negligence

A

P’s own negligence contributes to her injury.

Effect: P’s damage award reduced by percentage of fault attributable to her, if her fault is above 50% then her claim is barred.

Applies to reckless/wanton/tortious conduct.

43
Q

Strict Liability

A
  1. Nature of D’s activity imposes an absolute duty to make safe;
  2. Dangerous aspect of the activity is the actual and proximate cause of P’s injury; and
  3. P suffered damage to person or property.
44
Q

Liability for Animals

A
  1. Strict liability for wild animals.
  2. No strict liability for domestic animals, unless knowledge (one bite rule).
  3. Strict liability not available to trespassers.
45
Q

Abnormally Dangerous Activities

A

Strict liability where:

  1. The activity creates a foreseeable risk of serious harm even when reasonable care is exercised; and
  2. Activity is not a matter of common usage in the community.

Blasting, explosives, crop dusting, fumigating, storing deadly stuff. \

Reasonable care irrelevant.

46
Q

Product Liability: Theories

A
  1. Intent
  2. Negligence
  3. Strict liability
  4. Implied warranties of merchantability or fitness for a particular purpose; and
  5. Representation theories.
47
Q

Products Liability: Common Elements

A

Generally: 1. Defect; and 2. Existence of defect when product left D’s control.

48
Q

Products Liability: Negligence

A

Who can sue: Any foreseeable P

Who can be sued: Any product supplier, not just manufacturer.

What constitutes culpable conduct: Negligence conduct that results in the supplying of a defective product

What damages can be recovered: Personal injury and property damage, none for economic loss alone.

What Defenses?: Assumption of the risk and any type of contributory negligence.

49
Q

Products Liability: Strict Liability

A

Who can sue: Any foreseeable plaintiff

Who can be sued: Any commercial supplier

What constitutes culpable conduct: The supplying of a defective product

What damages can be recovered: PI and property damage (no economic loss)

What defenses?: (i) in Contributory Negligence states, only assumption of the risk and unreasonable misuse; and (ii) in Comparative Negligence states, any type of fault.

50
Q

Products Liability: Implied Warranties

A

Who can sue: Purchaser, their family, household, and guests

Who can be sued: (i) Merchantability: Merchant dealing in kind of goods sold; and (ii) Fitness for a Particular Purpose: Any seller of the goods.

What Constitutes Culpable Conduct: (i) Merchantability: Sale of goods not generally acceptable for ordinary purpose; and (ii) Fitness for a Particular Purpose: Sale of goods not generally acceptable for specific purpose where seller knows of purpose and buyer relies on sellers judgment.

Damages: PI and property, no economic loss.

Defenses: (i) Contributory Negligence States, Assumption of the risk, unreasonable misuse, and failure to give reasonable notice of breach; and (ii) Comparative Negligence States, any type of fault.

51
Q

Private Nuisance

A
  1. Substantial and unreasonable interference with;

2. Another private individual’s use or enjoyment of property.

52
Q

Public Nuisance

A

An act that unreasonably interferes with the health, safety, or property rights of the community. Recovery by private party only if unique harm to an individual as opposed to public at large.

One may ‘come to the nuisance’ and still sue.

53
Q

Respondeat Superior

A

Master/employer liable if employee commits a tort within the scope of the employment.

Frolics and detours within scope of employment. If substantial not liable.

Not applicable to intentional torts except:

  1. Force authorized in employment;
  2. Friction generated by the employment; or
  3. The employee is furthering the business of the employer.

Also employers can be liable in the selection of their employees.

54
Q

Vicarious Liability: Contractors

A

No usually liable except where:

  1. IC is engaged in inherently dangerous activities; or
  2. Non-delegable duty for public policy reasons, e.g., keeping premises safe for invitees.
55
Q

Vicarious Liability Overview[9[

A

Employee/Servant: If within scope of employment

Independent Contractor: Not generally liable, unless dangerous or public policy reasons.

Partner of Joint Venturer: If it falls within scope of partnership or JV.

Driver of car: Not liable unless family car doctrine (immediate family members driving with implied or express permission), or permissive use doctrine.

Bailee of Chattel: None.

Child: Parents not vicariously liable except where limited statutory liability for willful and intentional torts.

Patron of a Tavern: In absence of dramshop act not liable.

56
Q

Joint and Several Liability

A

Each D liable to P for entire damage incurred, but can seek contribution from other D’s. If injury is divisible each D liable for only the identifiable portion.

57
Q

Contribution

A

Allows a D who pays more than his share of the damages to have a claim against other D’s for the excess.

Method of apportionment:

  1. Comparative contribution, i.e., relative fault.
  2. Equal shares.

Other D’s must be liable to the original plaintiff.

NOT APPLICABLE TO INTENTIONAL TORTS.

58
Q

Indemnity

A

Shifts entire loss between or among tortfeasors. Available when:

  1. By contract;
  2. Vicarious liability situation; or
  3. Strict products liability.

Tends to apply where tortfeasor is much less negligent than the others.

59
Q

Survival and Wrongful Death

A

Survival: Only actions that survive are torts to property and personal injury, doesn’t apply to intangible interests (like privacy claims).

Death: Brought by spouse or next of kin. Creditors no claim to amount awarded. Only can recover to extend deceased could have recovered. Potential beneficiary negligence also reduces.

60
Q

Government Immunity

A

Generally waived for intentional torts, fraud, and interference with K.

61
Q

Defamation

A
  1. Defamatory language;
  2. Of or concerning the P;
  3. Publication by D to a third person; and
  4. Damage to P’s reputation.
62
Q

Defamation: Public Concern

A

If the defamation involves a matter of public concern the Constitution requires 2 additional elements:

  1. Falsity of the defamatory language; and
  2. Fault on the part of the D.
63
Q

Group Defamation

A

Only applies to small groups (all members), or if some members of a small group, then only those members.

64
Q

Damage to Reputation

A

Libel: No need to prove special damages and general damages are presumed.

Slander: Must prove special damages, unless slander per se:

  1. Business reputation/conduct;
  2. Loathsome disease;
  3. Crime of moral turpitude; or
  4. Woman is unchaste.
65
Q

Defamation: Falsity

A

P must show that the defamatory statement is false.

66
Q

Defamation: Fault

A
  1. Public/Official Figure: Actual malice required for public official or figure. A public figure includes those who voluntarily or involuntarily assume a central role in a particular public controversy. Defined as: (i) knowledge; or (ii) reckless disregard as to truth or falsity.
  2. Private Person Public Concern: Must only show negligence. Damage only for actual injury.
  3. Private Person Private Concern: Fault not applicable, presumed damages.
67
Q

Defenses to Defamation

A
  1. Consent
  2. Truth (in non constitutional cases the DEFENDANT must show the truth)
  3. Absolute privilege: judicial proceedings, legislators during proceedings (even if unrelated), executive officials, compelled broadcasts, spouses.
  4. Qualified privilege: reports of official proceedings, defense of ones actions, statements in interest of publisher, can be lost if not within scope or is shown that communicator acted with malice.
68
Q

Invasion of Right of Privacy: Four Types!

A

Four types:

  1. Appropriation of P’s Picture or Name: Unauthorized used of picture or name for commercial advantage.
  2. Intrusion on P’s Affairs or Seclusion: Prying or intruding must be highly offensive to a reasonable person. Must be private space.
  3. False Light: Applies where you attribute things to P views that P does not hold or actions P did not take. Must be highly offensive. Must have publicity. If matter of public concern then there must be actual malice.
  4. Public Disclosure of Private Fact: Public disclosure of a private fact about P. Must be highly offensive to a reasonable person of ordinary sensibilities.
69
Q

Intentional Misrepresentation

A
  1. Misrepresentation of a material past or present fact;
  2. Scienter, i.e., when D made statement, knew or believed it was false;
  3. Intent to induce reliance;
  4. Causation (actual reliance);
  5. Justifiable reliance by P; and
  6. Damages.

No defenses. No general duty to disclose unless in a fiduciary or agent relationship. Physical concealment can also count.

70
Q

Negligent Misrepresentation

A
  1. Misrepresentation by D in a business or professional capacity
  2. Breach of Duty
  3. Causation (actual reliance);
  4. Justifiable reliance by P; and
  5. Damages.

Generally only applies to the P who heard the misrepresentation, not to anyone P tells who relies on it. Confined to commercial setting.

71
Q

Tortious Interference with Business Relations

A
  1. Valid K relationship between P and third party OR valid business expectancy of P;
  2. D’s knowledge of the aforesaid;
  3. Intentional interference by D to induce a breach; and
  4. Damages
72
Q

Wrongful Institution of Legal Proceedings/Abuse of Process

A
  1. Institution of CRIMINAL proceedings against P (e.g., filing a complaint with the cops);
  2. Termination in P’s favor;
  3. absence of probable cause;
  4. Improper purpose; and
  5. Damages

Most jurisdictions apply it to civil proceedings.

Abuse of Process: (i) wrongful use; and (ii) act or threat to accomplish the wrongful/ulterior use.

73
Q

Strict Products Liability Elements

A
  1. The D is a commercial supplier;
  2. The D produced or sold a product that was defective when it left the D’s control
  3. The defective product was the actual and proximate cause of the injury. and
  4. P suffered damages.
74
Q

Design Defect Elements

A
  1. Usefulness and desirability of the product;
  2. Availability of safer alternatives;
  3. Dangers of the product that have been identified at the time of trial;
  4. Likelihood and probable seriousness of injury;
  5. Obviousness of the danger;
  6. Avoidability of the injury by care in use of the product; and
  7. Feasibility in eliminating the danger without seriously impairing the product’s function or making it unduly expensive.
75
Q

Proximate Cause: Product Liability

A

Must show that the type of injury suffered was foreseeable the time the product was placed in the stream of commerce.

76
Q

Actual Cause

A

Elements:

(i) P must trace the harm suffered to a defect that existed

Josh's MBE Cards (9 decks)

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