Torts Flashcards
What are the intentional torts?
ABC-FITT
Assault
Battery
Conversion
False Imprisonment
IIED
Trespass to land
Trespass to Chattels
Civil Assault
- Intentional
- harmful or offensive contact or imminent apprehension of contact
- Causes P to reasonably apprehend imminent contact
Nominal and punitive damages available
NIED: Theories of Liability
- Zone of danger
- Bystander witnessing close relative injury, OR
- Special relationship
NIED: Bystander Liability
- Close relative injured
- Neg put at risk of immediate bodily harm
NIED: Special situations
- Erroneous announcement of death or illness
- Mishandled corpse; OR
- Contaminated food
Civil Battery
- Intentional
- harmful or offensive contact or imminent apprehension of contact
- Harmful or offensive contact
Nominal and punitive damages are available.
Conversion
- Intentional
- Substantial interference
- with owernship rights
- FMV at time of conversion
Trespass to chattels
- Intentional
- Minor interference
- with ownership rights
- actual damages
IIED
- Intentional or reckless disregard
- Extreme and outrageous conduct
- Causing severe emotional harm
NB: Public figures must show actual malice for publication
Physical injury rarely required except for bystanders
Defamation
- Knowingly or negligently
- Publishing to a third party
- Defamatory statement
- Causing harm
Slander per se
- Serious crimes
- Occupational
- Serious misconduct
- Loathsome disease
Special relationships imposing duty to protect others
PHESCCI: Please Help Eliminate Safety Concerns Causing Injuries
- Parent
- Hospital/patient
- Employer/employee
- Shopkeeper
- Common carrier
- Custodian
- Innkeeper
Special relationship duties - CL
highest duty of care
Special relationship duties - minority view
reasonable care
Special relationship duties - majority view
ordinary care
Landowner duties - CL
- Invitees - inspect for dangers
- Licensees - warn of known defects and reasonable care
- Anticipated trespassers - warn of artificial dangers and reasonable care
- Unanticipated trespassers - no duty
Attractive nuisance
- Artificial condition where children likely to trespass
- at least constructive knowledge of unreasonable harm to children
- Children cannot reasonably appreciate risk
- Risk outweighs utility
- failure to exercise reasonable care to protect children
What level of culpability is required for a defamation claim?
- Private person - Knowledge or Negligent disregard
- Public figure / official - actual malice if a public concern or public figure
Private nuisance
- Substantial and unreasonable interference
- with another’s use or enjoyment of land
NB: where harm outweighs utility is not complete defense
Public nuisance
Interference with the use and enjoyment of property is both (1) substantial in that it is intolerable to a normal person in the community; (2) harm outweighs utility of conduct; (3) different kind of injury than general public
Strict liability for domestic animals
- knew or reason to know about dangerous propensities
- harm arose from propensities
shopkeeper’s privilege
No liability for false imprisonment when:
- Reasonable belief of shoplifting
- Detained for reasonable time and manner
7 Duties to Affirmatively Act?
LACC ASS
Land possessors
Assumption of duty
Creation of risk
Contract
Authority
Special relationships
Statute
Guest statute
Only duty is refrain from gross or wanton and willful misconduct
Negligence per se
- criminal or regulatory state imposes duty
- violated
- P is in intended class
- harm is of intended type
Conclusive presumption (majority); Rebuttable presumption (minority)
Intentional interference with contract
- Valid K (majority: not terminable at will)
- D knew
- Intentionally and improperly interfered
- Caused pecuniary loss
Landowner duties - modern
Duty of reasonable care to protect from foreseeable harm except flagrant (egregious) trespassers
Physician failure to disclose risks
- Failure to disclose caused patient to consent
- Caused physical harm
Privacy torts
- Intrusion upon seclusion
- Appropriation of name or likeness
- Public disclosure of private facts
- False light
Intrusion upon seclusion
- Intentional intrusion
- Private affairs
- Highly offensive to reasonable person
False imprisonment
- Intentional confining or restraining
- Results in confinement
- Plaintiff is conscious of or harmed by it
When does a plaintiff have an obligation to retreat?
Majority: none
Minority: retreat before deadly force except within curtilage
When can a private citizen assert the privilege of arrest?
- a felony has in fact been committed
- there is a reasonable belief that the person being arrested did it.
Trespass to land
- Intentional
- Physical invasion of land
- nominal damages available
Negligence
- Duty
- breach
- causation
- damages
What is the standard of care imposed on a child?
Reasonable child of similar age, intelligence, and experience
What does a guest statute do?
Impose only a duty to refrain grom gross or wanton and willful misconduct with a guest in the car
What factors guide the standard of care?
- likeilhood of harm
- foreseeable severity
- burden in avoiding harm
When are doctors NOT under an obligation to disclose?
- Commonly known
- unconscious or incapable patient
- waiver
- incompetent patient following reaosnable attempt to secure consent from guardian
- disclosure would be detrimental
res ipsa loquitur
- ordinarily does not occur without negligence
- exclusive control of D
- not due to plaintiff
When do intervening acts break proximate cause?
When unforeseeable
When has the federal government NOT waived immunity to tort actions?
- enumerated torts, except intentional torts commited by LEOs
- discretionary functions (decisions/plans) as opposed to ministerial (no immunity)
- In PL, government contractors that conformed with gov specs and warned gov of known dangers
- traditional gov activities (postal, tax, military, etc.)
When is a municipality liable under a special relationship?
- promises or actions on part of municipality
- knowledge that failure to act could harm
- direct contact between agents and injured party
- justifiable reliance
When are exculpation clauses generally unenforceable?
Any of:
- Disclaiming reckless or wanton misconduct or gross negligence
- gross disparity of bargaining power
- offering services of great public importance (e.g. medical)
- invalidity defenses
- public policy defenses
What are the 3 types of strict liability activites?
- Dangerous activities
- Animals
- Defective or dangerous products
What are the elements of a product liability claim?
- Defective in manufacture, design, or failure to warn
- Defect existed at time product left control
- caused plaintiff’s injuries
- when used in intended or reasonably foreseeable way
What is the test for a manufacturing defect?
Whether it conformed to defendant’s own specifications
What are the two design defect tests?
- Consumer expectation test–unreasonably dangerous to consumer?
- Risk-utility test–(1) risks outweigh benefits? (2) reasonable alternative design?
Implied warranty of merchantability
generally acceptable and reasonably fit for ordinary purposes for which it is sold
Implied warranty of fitness
- Seller knows particular purpose?
- Buyer relies on seller’s skill or judgment in supplying product
What are the two ways a plaintiff can be categorized as a public figure for defamation law?
- General purpose public figure - celebrity etc.
- limited purpose - thrust themselves into specific controversy
What is the difference between libel and slander?
- Libel is in writing; slander is speech
- libel has presumed damages; slander requires showing someone heard it
Elements for misappropriation of right to publicity
- Unauthorized misappropriation of name, likeness, or identity
- for D’s advantage
- lack of consent
- resulting in injury
survives death in PA
False light claim
- made public facts
- putting in false light
- highly offensive to a reasonable person
- with malice (majority rule) or reckless disregard (PA)
Public disclosure of private facts
- Public disclosure of private life of another
- highly offensive to a reasonable person or not of legitimate public concern
negligent misrepresentation claim
- providing false information
- negligently
- during course of business
- causing justifiable reliance
- and the plaintiff is either in a contract or a third party beneficiary
Trade libel claim
- publishing
- a false and derogatory statement
- with malice
- relating to title, quality of business, or its products
- causing special damages
slander of title
- publishing
- a false statement
- harming plaintiff’s title
- with malice
- causing special damages
- as a result of diminished value in the eyes of third parties
malicious prosecution claim
- intentional and malicious prosecution
- for an improper purpose
- without probable cause
- dismissed in favor of the person against whom it was brought
PA has extended to civil cases
abuse of process claim
- a legal procedure set in motion in proper form
- for an ulterior motive
- using process that is not proper in the regular course
- causing special damages
Under PA law, when is a restraint reasonable under the shopkeeper’s privilege?
- Permits identification
- learn if merch is in possession, OR
- institute criminal proceedings
Under PA law, when can somone stand there ground rather than retreat before using deadly force?
- Not engaged in criminal activity and no illegal firearm
- right to be where attacked
- reasonable belief of necessary force
- person uses firearm, replica, or other deadly weapon
Under PA law, what are absoute defenses to a private nuisance action?
Agricultural operations operating susbtantially unchanged for at least 1 year OR state-sanctioned nutrient management plan
What factors are considered under PA law for assessing whether a duty of care exists?
- relationship between parties
- nature of risk and foreseeable harms
- social utility of conduct
- consequences of imposing duty
- overall public interest
What do PA’s Good Samaritan statutes protect?
Providing emergency medical care absent gross negligence
Under PA law, when can children be negligent?
- Incapable under 7
- 7 to 14 rebuttably presumed incapable
- over 14 presumed capable
Does PA apply a local or national standard to physicians?
Local, not national, BUT national for medical specialists!
Under PA law, what standard of care do common carriers and innkeepers owe?
highest duty of care
Does PA have a guest statute?
No; car guests can recover damages for negligence
Under PA law, what duties does a landowner owe to a trespasser?
Refrian from willful or wanton misconduct. That’s it.
Under PA law, when is the possessor of land liable to an invitee?
- Knows of condition with unreasonable risks
- expects invitee would not protect self
- fails to exercise reasonable care
- invitee must show possessor either created harmful condition or had notice of it
Under PA law, what is the test for proximate causation?
- Substantial factor
- liabilty not relieved by law
NOT a foreseeability analysis
Under PA law, to what extent can parents be held liable for torts committed by minor children?
up to $1k per person injured, to a total of $2500
Under PA law, when has the government waived tort liability?
- vehicle liability
- control of properyt or animals
- real property
- trees, traffic control, street lighting
- streets and sidewalks
- utility service facilities
NOT false arrest
Under PA law, when can defendants be jointly and severally liable?
Generally not; liability is several
BUT possible for
- intentional misrepresentations
- intententional torts
- when defendant is liable for 60% or more of total liability
Under PA law, what form of contributory negligence is there?
Partial comparative fault (recovery if under 50% at fault)
Not applied to wanton or willful misconduct actions
When does PA recognize assumption of the risk?
- Offroading
- downhill skiing
Under PA law, when is the owner of a domestic animal liable for injuries by that animal?
If negligent (not SL), even if has reason to know of dangerous propensities
Under PA law, when is an owner liable for a dog that kills a service dog?
- Knows of propensity for violence
- knowingly or recklessly failed to securely restrain dog
Can be 15k penalty, vet bills, cost of replacement, or lost income
Under PA law, what are the elements of a defamation claim?
- Defamatory language
- about plaintiff
- published to third party who understands its defamatory nature
- causing damages
- and the defendant is at fault
Actual malice for public figures or officials
Under PA law, what are the elements for an intentional interference with contract claim?
- purposeful harmful interference
- with a prospective contractual relationship
- resulting in harm or damages
Intentional misrepresentation claim
- Misrepresentation
- with intent to induce reliance
- causation
- justifiable reliance
- damages
Majority is “benefit of the bargain” damages
