Torts Flashcards
Tort Battery
The intentional harmful or offensive touching of another without consent or privilege.
Tort Assault
The intentional placing of another in apprehension of an imminent harmful or offensive touching without consent or privilege.
Tort Conversion
The intentional exercise of wrongful dominion and control over the chattel of another without consent or privilege.
False Imprisonment
The intentional physical or psychological confinement of another within fixed boundaries, for any period of time, without consent or privilege.
Intentional Infliction of Emotional Distress
Conduct of an extreme and outrageous nature, which is calculated to cause and which does cause severe emotional distress.
Trespass to Land
The intentional entry upon the land in possession of another without consent or privilege.
Trespass to Chattel
The intentional interference with the chattel in possession of another without consent or privilege.
Crazy Silly Double Dealing Dirty Dog Leave Right Now Never Return Ever
Consent Self Defense Defense of others Defense of property Discipline Detention for Investigation Legal Authority Re-entry of land wrongfully withheld Necessity public Necessity private Recapture of chattel Entry to abate a nuisance
Negligence
D may be liable to P for negligence if it can be determined that D owed a duty to P, that D breached that duty, and P suffered damages actually and proximately caused by D’s breach.
General duty
It appears that when D did ACT he created a foreseeable risk of harm and fell below the reasonable standard of care for a BLANK.
Creation of duty
CRAPS Contract special Relationship Assumption of duty creation of Peril Statute
Special Duty - VGOLD
Violation of statute Guest statute Omission to act Landowner/occupier - licensee: warn of known, invitee: warn and make safe all found with reasonable inspection, known trespasser: warn. Duties owed by lessors of land
Violation of statute - ICI+/-
Intent of legislature
Class intended to protect
type of Injury
evidentiary effect - violation = breach
Strict Liability - Rylands v Fletcher
A person who brings something onto his land that involves a non-natural use of the land and is likely to cause substantial damage if it escapes will be strictly liable if it in fact escapes and causes harm.
Strict Liability - 2nd Restatement
One who maintains an abnormally dangerous condition or activity on his premises may be liable for the harm it causes even with reasonable care.
Tort General Damages
Past, present, future pain and suffering
Tort Special Damages
Past, present, future economic losses, medical bills, loss of wages/profits.
Pure economic loss not supported.
Negligent Infliction of Emotional Distress
Duty owed not to subject others to a foreseeable risk of physical injury that might foreseeably result in emotional distress.
Product Liability
Intentional approach
Knowledge
Substantially certain
Battery
Punitive $
Products Liability
Negligence approach
Duty Breach Causation Damages Defenses
NIED Bystander Rule
Dillon v Legg minority - close relationship and contemporaneous sensory observance.
Thing v La Chusa - limited to closely related and present at event.
Products Liability
Warranty approach
Expressed Implied warranty of merchantibility Implied warranty of fitness for intended use Causation Damaged Defenses
Assumption of Risk
P assumes the risk when he has knowledge, comprehension, and appreciation of a danger and voluntarily chooses to encounter it.
Survival Statute
Suit brought by estate subject to claims. Recover same as personal injury suit.
Products Liability
Strict liability in tort approach
Memorized statement
Stream of commerce
Defect in existence
Causation
Damages
Defenses
IndemnityWrongful Death
Suit brought by heirs. Recover loss of pecuniary support.
Products Liability - Negligence - McPherson v Buick
McPherson v Buick discarded the privity requirement and maintained where the average reasonable man could foresee that the product would create a risk of harm, then the supplier was under a duty to all foreseeable users.
Implied Warranty of Merchantability
A merchant selling goods warrants that they are of average and fair quality, ie., fit for normal use.
Implied Warranty of Fitness for Intended Use
If seller knows of buyer’s intended use, and buyer acting as an average reasonable person, relies upon seller’s “special knowledge and skills” then seller has liability.
Defamation approach
Memorized statement
Damages
Defenses
Truth
Consent
Absolute
Qualified
Constitutional privilegeProducts Liability -
Strict Liability In Tort
Courts have held a manufacturer/distributor/supplier liable by operation of law. Thus, if a defective product is placed in the stream of commerce the manufacturer will be held strictly liable in tort to all consumer-users for their injuries.
P must establish that the product is defective in design, manufacture, or warning.
Restatement 2nd 402a - Required that in order for a product to be defective it must be sold by a commercial seller and be unreasonably dangerous in its normal intended use (danger not contemplated by ordinary user and manufacturer must have been able to foresee).
Consumer expectation test/cost/benefit analysis test.
CA only requires that the product be defective and causes harm in its normal use. Foreseeability not an issue.
Improper Litigation
Malicious prosecution, wrongful institution of civil proceedings, abuse of process.
Nuisance
An act by D that constitutes a nontrespassory invasion of P’s interest in the use and enjoyment of his land, causing P substantial and unreasonable harm. (Utility v Risk, $ damages or injunction)
Invasion of privacy approach
AFLIP
Appropriation of likeness
False Light
Intrusion upon seclusion
Public disclosure of private fact
Defenses
Consent
Truth - FL
Newsworthy
IIED?
False Light
Unauthorized use of P’s name or likeness attributing to P ideas which are false.
Must be highly offensive to a reasonable person.
Time v Hill - must demonstrate malice.
Defense of truth, absolute and qualified privilege.
Misrepresentation
Intentional/Negligent
A false representation of existing material fact which is made:
Intentional - knowingly with intent to induce P’s reliance, causing P to justifiably rely to his damage.
Negligent - with lack of due care intending to induce reliance to which proximately causes P damage.
Business Torts
Injurious Falsehood
Interference with contract
Interference with prospective advantage
Public Disclosure of Private Fact
Highly offensive to reasonable person and not of public concern.
Publicity enough to equate to public at large.
Defense of newsworthy.
Invitee
An invitee is one whose presence confers an economic benefit on the landholder.
Pure Comparative Negligence
A plaintiff’s recovery in a negligence action is diminished in proportion to the plaintiff’s fault, but is not barred.
Torts Main Checklist
Intentional Torts/Defenses Negligent Torts/Defenses Miscellaneous Torts Strict Liability Vicarious Liability Products Liability Crossover Torts Defamation Invasion of Privacy Remedies
Products Liability Approach
Intent
Negligence - McPherson v Buick
Warranty
Strict Liability in Tort - R 2nd 402a
Attractive Nuisance
A Professor You Understand
Artificial
Possessor knew or should have known
Youth unable to recognize danger
Utility of maintain condition v burden to eliminate.
Res Ipsa Loquitur
The thing speaks for itself.
Breach may be applied in situations where 1) such things do not happen absent negligence 2) no one else could be responsible 3) the plaintiff did not contribute to his own injury.
Crossover Torts - I Never Mix Business
Improper litigation
Nuisance
Misrepresentation
Business Torts
Miscellaneous Torts
Wrongful Death
Survival Statute
Statute of Limitations
Immunities
Defamation
P must prove that the matter was false and defamatory (lowers P’s esteem in the community) published intentionally or negligently by D to a third person, that the third person understood the defamatory imputations applied to P and P suffered damage as a result of the defamation.
When a public figure sues for libel related to a matter of public concern actual malice as defined in New York v Sullivan becomes part of P’s prima facie case. Actual malice is knowing falsity or reckless disregard for truth or falsity.
Absolute Privilege
Judicial Legislative Government Spouse Broadcasters
Qualified Privilege
Public proceedings Fair comment Self protection Protect others Common interest Prevent a crime
Constitutional Privilege
Public figures absent malice
Appropriation of Likeness
Unjust enrichment through the theft of goodwill.
Intrusion upon Seclusion
Unreasonable invasion of another’s reasonable expectation of privacy.
Superseding Intervening Cause Statement
If negligence that is a cause of harm is followed by an intervening cause of harm that was unforeseeable, the intervention is regarded as a superseding cause that relieves the antecedent wrongdoer of liability.
